[00:00:05] Speaker 01:
We have five cases on the calendar this morning.

[00:00:08] Speaker 01:
A case from the Court of International Trade, a patent case from the District Court, a patent case from the PTO, the Veterans' Appeal and the Government Employee Appeal, the latter being submitted on the briefs and not being argued.

[00:00:29] Speaker 01:
The first case is Al Bramall,

[00:00:33] Speaker 01:
versus Shansi et al versus the United States and Calgon 2015, 12, 88, 89, and 90.

[00:00:44] Speaker 01:
Now, we're going to hear from Ms.

[00:00:50] Speaker 01:
Kramer for 10 minutes and then Ms.

[00:00:55] Speaker 01:
Burke and for

[00:01:03] Speaker 01:
Total of 10, Mr. Labrador total of five, and Mr. Menegas for five, and Ms.

[00:01:14] Speaker 01:
Kramer will have her five minutes of rebuttal time.

[00:01:17] Speaker 01:
So let us begin.

[00:01:20] Speaker 01:
I think the clock should be set at 10 minutes for Ms.

[00:01:23] Speaker 01:
Kramer.

[00:01:26] Speaker 01:
Good morning.

[00:01:35] Speaker 03:
May it please the court?

[00:01:37] Speaker 03:
In its third review of the anti-dumping order on activated carbon, Commerce assigned our client, Wafui, a fully cooperative respondent, an outdated rate of $0.44 per kilogram, despite the fact that he had calculated a zero and de minimis margin for the two mandatory respondents.

[00:01:54] Speaker 03:
This $0.44 rate was not based on any data from the current review period.

[00:01:58] Speaker 00:
What would be, the government says it lacks the resources to make individual rate calculations.

[00:02:04] Speaker 00:
What's involved in that?

[00:02:06] Speaker 00:
The same surrogate values are being used for everyone.

[00:02:11] Speaker 00:
Are we just talking about collecting information about the U.S.

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sales price?

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Is that what's missing?

[00:02:17] Speaker 03:
An administrative review proceeding isn't an involved proceeding and commerce expenditures... Wait, wait, wait.

[00:02:23] Speaker 00:
Try to answer my question.

[00:02:27] Speaker 03:
Yes, so what is involved is obtaining information from the respondent.

[00:02:32] Speaker 00:
But are we talking about just U.S.

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price information since the same surrogate values are being used for all of the respondents?

[00:02:40] Speaker 03:
For Huahui, the situation, the answer is yes, U.S.

[00:02:42] Speaker 03:
price information because Huahui gave its information to Jacobi and Jacobi then submitted that information to obtain its zero margin.

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Yet commerce disregarded the fact that Huahui had provided

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information through Jacobi in this proceeding and assigned to Huahui the outdated rate of 44 cents.

[00:03:03] Speaker 00:
So the U.S.

[00:03:04] Speaker 00:
sales price information for Huawei was already in the record submitted for Jacobi?

[00:03:10] Speaker 03:
No, Your Honor.

[00:03:10] Speaker 03:
It was the other side of the dumping equation.

[00:03:13] Speaker 00:
The surrogate values.

[00:03:14] Speaker 00:
The surrogate values, the factors of... So what the government would have to do to calculate individual rate for Huawei is get U.S.

[00:03:21] Speaker 00:
sales information.

[00:03:22] Speaker 03:
That's correct.

[00:03:24] Speaker 03:
That's correct.

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But here, it did not have such information.

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So Commerce reached back to outdated data from the prior year's review.

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And this 44-cent rate was not consistent with the statute, and nor was it supported by substantial evidence.

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A complete lack of evidence, there was no evidence on pricing data in the review, cannot meet any standard of substantial evidence or reasonableness to support that 44-cent rate.

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Commerce's rate also was not consistent with the statute,

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because the agency did not use one of the statutorily sanctioned methods of calculating the anti-dumping rate, either the expected method or some other reasonable method.

[00:04:02] Speaker 02:
You don't attribute much significance, I take it, to the fact that the statute refers to investigations and not administrative reviews.

[00:04:12] Speaker 03:
Well, no party has seriously contested its commerce's practice to use that part of the statute.

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the part of the statute referring to investigations.

[00:04:22] Speaker 02:
Well, but the question really would be, how binding is the statutory language, which Commerce has said on several occasions, I gather, that in these kinds of administrative review situations, it will not do what the statute describes as the 735C5B procedure of you looking to

[00:04:50] Speaker 02:
the looking to the mandatory respondents when they have a zero are de minimis, but instead will use another process such as the process used here.

[00:05:03] Speaker 02:
They say that's one reason for that is because the statute isn't directed to administrative reviews.

[00:05:10] Speaker 02:
And what's your response to that?

[00:05:12] Speaker 03:
Well, they say that they take guidance from that.

[00:05:15] Speaker 02:
Right.

[00:05:15] Speaker 02:
But they don't regard themselves as bound by that, because the statute does not specifically refer to administer or refuse.

[00:05:21] Speaker 03:
Even if they're not bound by it, though, the statute says any other reasonable method.

[00:05:27] Speaker 03:
And you get to the same place, really, if you do a Chevron 2 analysis.

[00:05:30] Speaker 03:
If the statute hasn't spoken directly to how the calculation should be made, then commerce is given discretion to the extent that it's acting reasonably.

[00:05:39] Speaker 02:
Well, then that gets us to the question of whether this is reasonable.

[00:05:42] Speaker 02:
And what's wrong with Judge Stansu's conclusion in a word that commerce was faced with the question of whether to rely on outdated information, but information that was specific to Huawei, versus current information, but information that was not specific to Huawei?

[00:06:04] Speaker 02:
And they chose, given those two

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choices, neither of which was ideal, they chose the specificity over contemporaneity.

[00:06:13] Speaker 02:
What's wrong with that?

[00:06:14] Speaker 03:
Well, the Forty-Fourth Sense was not specific to this review period.

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Conditions change in each review period.

[00:06:21] Speaker 02:
No, that's true, and Judge Stentu acknowledged that.

[00:06:24] Speaker 02:
So what he said was, I acknowledge that we don't have current information with respect to Huawei, but what we do have is Huawei's immediate preceding administrative review number, which was specifically calculated for Huawei, unlike

[00:06:38] Speaker 03:
and shanshi right well the forty four-cent again was not specific to this review period but commerce has to look at the entire record and it had several pieces of information on the record they could also uh... asked for additional information about the u.s.

[00:06:52] Speaker 03:
sales price they could have been earlier right then that certainly was open to them under what the urban national trade asked them to do yes your honor it was open to them and in fact what we suggested that in the case brief stage at the administrative proceeding asked commerce perhaps

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collect quantity and value information, and backing up while we actually asked to be a voluntary respondent in this proceeding.

[00:07:14] Speaker 03:
So it asked to have its own information used to calculate a margin.

[00:07:18] Speaker 03:
But due to limited resources, Commerce said it couldn't do that.

[00:07:23] Speaker 00:
Well, how difficult would it be for Commerce to make such a calculation?

[00:07:29] Speaker 03:
Well, Commerce would say difficult, because it says that it only had the resources to collect information from two respondents.

[00:07:36] Speaker 03:
But as this court has said in Bestpac and I believe Chengzhu Wujin, concerns for administrative resources can't trump accuracy.

[00:07:44] Speaker 03:
And what we had on this record that showed that that 44-cent rate was not accurate as to Huawei are several things.

[00:07:50] Speaker 00:
One is the... But answer my question.

[00:07:53] Speaker 00:
How difficult would it be for commerce to make an individual calculation for Huawei since the surrogate values it already has, and it's just talking about U.S.

[00:08:02] Speaker 00:
sales price?

[00:08:03] Speaker 03:
Well, it could have made it

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simple.

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By using some reasonable proxy for U.S.

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price, one of those ways would have been quantity and value information that it in fact obtains in other cases when it's trying to select respondents.

[00:08:17] Speaker 03:
It didn't do so here, but it's routine for commerce to collect that kind of information.

[00:08:23] Speaker 02:
As far as the information that shows that 44 cents wasn't reasonable... We did not apply to be a voluntary respondent in this case, right?

[00:08:32] Speaker 03:
What we did did request.

[00:08:34] Speaker 02:
They requested voluntary

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they've requested, but then that didn't go any further once commerce selected to mandatory respondents.

[00:08:43] Speaker 02:
Oh, I thought it was one of the others.

[00:08:45] Speaker 02:
OK.

[00:08:47] Speaker 03:
So what shows that that 40% wasn't reasonable is, first, the trend in the margins.

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In the investigation, CCT and Jacobi were also mandatory respondents back then.

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And they had margins in the range of 60% to 70%.

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Then the margins went down in the second review.

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Then commerce changed its methodology and went to a per unit basis.

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And then between the second and the third review, margins also changed.

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Now CCT and Jacobi received zero margins.

[00:09:13] Speaker 03:
The surrogate values bolstered this story.

[00:09:17] Speaker 03:
I'm sorry, the financial ratios bolstered this story.

[00:09:19] Speaker 03:
So the financial ratios, which are a key component of the normal value part of the equation, went down by about 50% between the second and third review.

[00:09:30] Speaker 03:
So we know that all other things being equal, Huawei's margin would not have been the same as it was in the second review because that key component of the dumping margin, the financial ratios, went down.

[00:09:40] Speaker 03:
So it's unreasonable for commerce to pull forward that outdated 44 cent rate in view of the fact that we know that one part of the calculation would have gone down.

[00:09:53] Speaker 03:
Commerce says that it has no data on the margin to determine the separate rate

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company's pricing behavior, but nor is there any information showing that that 44 cent rate is consistent with Huawei's pricing behavior during the period of review.

[00:10:09] Speaker 00:
If there were such information, then it would be okay to use the 44 cent rate?

[00:10:14] Speaker 03:
Well, that would be speculation, Your Honor, because that information was not submitted on the record, and we know that the financial ratios went down between the second and third reviews.

[00:10:22] Speaker 03:
So we know that the 44 cent rate, all other things being equal, would not be the same.

[00:10:28] Speaker 03:
Another way we know that that 44 cent rate would not be the same is the surrogate values that were determined anew in this third review.

[00:10:37] Speaker 03:
We cite this in our brief, but if you look at JA101185 and JA200120, you see the surrogate value chart that commerce relies on to determine the normal value.

[00:10:52] Speaker 03:
And that surrogate value chart shows that those rates are from the period of review.

[00:10:56] Speaker 03:
Not from the last year's review, when that 44 cent rate was calculated, but from this year's review.

[00:11:02] Speaker 03:
The statute says that commerce shall conduct administrative reviews every 12 months.

[00:11:09] Speaker 03:
And that indicates that Congress's intent was there to be new analysis each review period.

[00:11:17] Speaker 03:
Commerce can spend

[00:11:18] Speaker 03:
expends considerable resources calculating those margins, as it did for CCT and Jacobi, and it essentially ignored those margins by pulling forward that 44 cent rate.

[00:11:28] Speaker 03:
I see that my time is almost up, but one important factor that I did briefly mention before is that Wahui's information is part of Jacobi's zero rate.

[00:11:36] Speaker 03:
Wahui is a separate rate company who is a supplier to Jacobi, and so part of the reason that Jacobi received that zero rate was because of Wahui's own information.

[00:11:46] Speaker 01:
Thank you, Ms.

[00:11:47] Speaker 01:
Cramer.

[00:11:48] Speaker 01:
We'll give you five minutes.

[00:11:50] Speaker 01:
We'll bottle later.

[00:11:50] Speaker 01:
Thank you.

[00:11:51] Speaker 01:
Ms.

[00:11:52] Speaker 01:
Burke, we're going to take eight minutes.

[00:12:01] Speaker 04:
May I please the court?

[00:12:03] Speaker 04:
The trial court's original determination should be reversed.

[00:12:07] Speaker 04:
And I'll start with that part of our argument, and then I'll obviously respond to the appellant.

[00:12:14] Speaker 00:
The only question for the court is whether commerce... But with respect to Wally, how difficult would it be to calculate a separate rate, which is what they originally asked for?

[00:12:23] Speaker 04:
Well, as the appellant correctly stated, commerce has part of the information.

[00:12:27] Speaker 00:
It has the factors of... You have the surrogate value information.

[00:12:31] Speaker 04:
We have the factors of production information, but only for the portion of product that Wally supplies to Jacoby.

[00:12:41] Speaker 04:
Not all of Wally's.

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products.

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So we have part of that side of the calculation.

[00:12:46] Speaker 04:
We have none of the other side of the calculation.

[00:12:49] Speaker 00:
Which is the U.S.

[00:12:50] Speaker 00:
price.

[00:12:50] Speaker 04:
Right.

[00:12:50] Speaker 00:
We don't have any.

[00:12:51] Speaker 00:
So why, what's so difficult?

[00:12:53] Speaker 00:
If you don't want to use the de minimis rates, what's so difficult about getting the U.S.

[00:12:58] Speaker 00:
price information which they are willing to supply to you and calculate a separate rate for it?

[00:13:03] Speaker 04:
Well, as the appellant just said, it's actually quite an involved process.

[00:13:07] Speaker 00:
I don't recall that they said it was an involved process.

[00:13:09] Speaker 04:
They said it was a complicated calculation that commerce undergoes.

[00:13:16] Speaker 04:
Commerce looks at information about customers, quantity, value, affiliations.

[00:13:22] Speaker 04:
It does all kinds of very complicated calculations.

[00:13:25] Speaker 04:
Sometimes it does verifications.

[00:13:27] Speaker 04:
It's a huge undertaking.

[00:13:29] Speaker 04:
Huge undertaking?

[00:13:30] Speaker 00:
What is there in the record that shows it's a huge undertaking?

[00:13:33] Speaker 04:
Well, in the memo where commerce determines that it only has the resources to take two mandatory respondents and it does not have any resources to take on voluntary respondents.

[00:13:45] Speaker 00:
What I'm asking is what shows that it's a huge undertaking?

[00:13:49] Speaker 00:
I know they say we don't have the resources, but there's no explanation.

[00:13:53] Speaker 04:
Well, there's an explanation.

[00:13:55] Speaker 04:
What commerce says is that it doesn't have the resources to examine anymore because examining more would be too difficult.

[00:14:01] Speaker 00:
I don't understand how it can be that commerce can say, because we don't have the resources, we're not going to come up with an accurate rate.

[00:14:14] Speaker 00:
That doesn't seem to be very reasonable.

[00:14:17] Speaker 04:
Well, that's actually what the statute contemplates.

[00:14:20] Speaker 04:
You have a statute that contemplates that you are going to have no information about the separate rate companies.

[00:14:26] Speaker 04:
That's why the separate rate companies get, in a normal situation, an average of what the mandatory is.

[00:14:32] Speaker 00:
Yeah, and we've had prior cases where, in AFA situations, commerce, in accordance with the statute, has used the prior rate.

[00:14:41] Speaker 00:
And we've said that that's reasonable under those circumstances because it's a fair inference that the

[00:14:49] Speaker 00:
non-cooperating respondent didn't have a better rate or it would have supplied the information.

[00:14:55] Speaker 00:
Here it seems to me that the basis for that kind of presumption doesn't exist because this is not an AFA situation and they've offered to give you the information.

[00:15:07] Speaker 04:
It's true that it's not an AFA situation and obviously in the AFA world you have in the statute that commerce can look to other segments of the proceeding.

[00:15:16] Speaker 04:
But here you arguably have something that gives commerce even wider discretion.

[00:15:20] Speaker 00:
You have language that says... Wider discretion than in an AFA case?

[00:15:23] Speaker 04:
You have language that says commerce can use any other reasonable method when you're in a world where you only have either AFA rates or de minimis margins or zero margins.

[00:15:35] Speaker 01:
Ms.

[00:15:35] Speaker 01:
Britt, tell us about your cross appeal.

[00:15:38] Speaker 01:
You want to get the rate up for the other suppliers.

[00:15:43] Speaker 04:
Right, so we think that the trial court erred in a couple of different ways.

[00:15:47] Speaker 04:
First of all, the trial court made factual findings that exceeded the court's standard of review.

[00:15:54] Speaker 04:
The court stated that the de minimis margins must be considered more representative of the industry-wide pricing behavior during the POR.

[00:16:05] Speaker 04:
Not only is that a factual finding that the trial court does not have the authority to make, it is inconsistent with this court's recent decision in NANYA.

[00:16:13] Speaker 04:
Nanya was very clear that the only thing that commerce has to do is follow the statute.

[00:16:19] Speaker 04:
Notions of commercial reality do not fit and do not apply when you have a statute that gives commerce such wide... So Nanya overruled all the earlier cases that said there has to be some commercial reality?

[00:16:35] Speaker 04:
No, Nanya was very careful to explain that when this court has found that commerce is

[00:16:42] Speaker 04:
decision is inconsistent with commercial reality, it's because the court either found that commerce had made an error, a calculation error, or that it simply just wasn't consistent.

[00:16:56] Speaker 02:
Isn't the rationale underlying the whole scheme of having mandatory respondents and then separate rates, which are

[00:17:07] Speaker 02:
calculated not on the basis of an investigation of each of the separate rate respondents, but based on the mandatory respondents.

[00:17:16] Speaker 02:
Isn't the rationale that the mandatory respondents are assumed to be representative of everybody else?

[00:17:24] Speaker 04:
No, not really.

[00:17:25] Speaker 02:
That's what Amanda says.

[00:17:26] Speaker 02:
Everybody agreed to that.

[00:17:30] Speaker 02:
Presumably commerce was one of the everybody there.

[00:17:32] Speaker 02:
Isn't that the rationale?

[00:17:34] Speaker 02:
Otherwise, isn't the system irrational?

[00:17:36] Speaker 04:
Well, the statute gives Commerce two choices.

[00:17:40] Speaker 04:
It can either use the volume methodology that it used here, or it can do a sampling methodology.

[00:17:45] Speaker 04:
Now, Commerce doesn't use the sampling methodology that frequently.

[00:17:48] Speaker 04:
But in 2013, it issued a notice for comment suggesting that it was going to start using the sampling methodology more, and it was going to refine that methodology because this volume methodology doesn't

[00:18:04] Speaker 04:
It allows the smaller respondents who know that they're never going to be investigated or reviewed to basically do whatever they want.

[00:18:12] Speaker 02:
Well, but you have a statutory structure that allows the commerce to set dumping margins for the separate folks at a rate which does not represent investigations of them.

[00:18:29] Speaker 02:
You have the choice.

[00:18:30] Speaker 02:
And I assume the rationale for that is that

[00:18:35] Speaker 02:
those dumping rates are assumed to be fair for those separate respondents because they are assumed to be dumping about the same rate as the mandatory respondents, correct?

[00:18:49] Speaker 02:
Isn't that the basis for saying you can hit these separate respondents with the same average dumping margins?

[00:18:56] Speaker 04:
I think it's partly correct.

[00:18:58] Speaker 04:
I think what it is is a crude way to allow commerce

[00:19:02] Speaker 04:
to perform its job within its resource constraints while capturing as much of the industry as it can possibly capture given its resource constraints.

[00:19:11] Speaker 04:
I don't think we would concede.

[00:19:12] Speaker 04:
And I know that the Court of International Trade said that we conceded that it was representative in Amanda Foods.

[00:19:19] Speaker 04:
It's actually not quite true that we did.

[00:19:21] Speaker 04:
But leaving that aside, I don't think it's technically representative.

[00:19:24] Speaker 04:
Representative is a technical term.

[00:19:27] Speaker 02:
A sample is representative.

[00:19:30] Speaker 02:
Let's take the non-technical sense of representative.

[00:19:32] Speaker 02:
Is it a roughly fair way of assessing?

[00:19:38] Speaker 02:
Yes.

[00:19:38] Speaker 02:
OK.

[00:19:38] Speaker 02:
And then if that's true, then what's wrong with saying where you have comparison between the current attributed rate, which would be zero because of the two mandatory respondents are zero, you have that to look at versus a previous attributed rate, which was not Huawei's rate, I mean not

[00:20:02] Speaker 02:
the churchman and uh... agencies rate at twenty eight cents why is it better to look at the current attributed rate rather than the past attributed right why isn't that more reasonable well because you have a statute that assumes that you actually shouldn't do that and then you have this court's case law that even further constraints common what do you mean in the statute says you shouldn't do that when you look at seven uh... thirty five c five

[00:20:30] Speaker 02:
which says you can do that.

[00:20:32] Speaker 02:
And in fact, the SAA says that's the expected method.

[00:20:35] Speaker 02:
It seems to me it's just the opposite.

[00:20:37] Speaker 04:
I'm a little bit over my time.

[00:20:38] Speaker 04:
I assume I can answer the question.

[00:20:40] Speaker 04:
So you have the statute that the first part of the statute assumes that you're not going to look at the de minimis and the AFA margins and the zero margins.

[00:20:48] Speaker 02:
735C5A.

[00:20:49] Speaker 02:
Right.

[00:20:50] Speaker 02:
Which doesn't apply here.

[00:20:51] Speaker 04:
Right.

[00:20:51] Speaker 04:
The second part of the statute says when you're in this awkward situation, you can do anything else that you want, including averaging them.

[00:20:59] Speaker 04:
You have the first part of the statute that assumes that these, I'm going to call them outliers, shouldn't be factored in.

[00:21:06] Speaker 04:
Then you have the second part of the statute that suggests that if you're in this situation, you might need to let them in.

[00:21:13] Speaker 04:
You might decide that it's reasonable to let them in, but you don't have to let them in.

[00:21:17] Speaker 02:
The SAA seems to say that the expected method is to average the de minimis and zeros.

[00:21:25] Speaker 02:
and that that will not be used but only if commerce can conclude that it would not be reasonably reflective of potential dumping margins and wouldn't be feasible.

[00:21:37] Speaker 02:
I don't see why it's not those two criteria are met in this case.

[00:21:42] Speaker 04:
So commerce went through that part of the SAA and determined that it wasn't reflective of, and I think potential is the key word,

[00:21:52] Speaker 04:
It wasn't reflective of potential dumping margins.

[00:21:56] Speaker 02:
There's the assumption.

[00:21:58] Speaker 02:
In the IND memo, which devotes a total of 20 lines to this whole issue, they went through that?

[00:22:04] Speaker 04:
Well, to the extent that it quotes the SAA.

[00:22:08] Speaker 04:
But the exercise here is to figure out what the SAA assumes we don't know what these companies' dumping margins are.

[00:22:18] Speaker 04:
And that's why it says,

[00:22:19] Speaker 04:
It should be reasonably reflective of potential dumping margins.

[00:22:23] Speaker 00:
Why is this reasonably representative?

[00:22:25] Speaker 00:
I mean, what is the basis for believing that these earlier margins are accurate with respect to these parties that weren't individually investigated?

[00:22:35] Speaker 04:
Well, that's where we get to this court's recent precedent.

[00:22:39] Speaker 04:
In best pack, the court said that whatever you come...

[00:22:43] Speaker 04:
The first thing the court said was, in theory... No, but forget about the theory.

[00:22:48] Speaker 00:
What does a factual matter suggest that these earlier margins are more accurate than averaging the de minimis margin?

[00:22:57] Speaker 04:
Because they bear, and I'm using the language from BestPak, because they bear some relationship to the actual dumping margins of the separate rate respondents.

[00:23:06] Speaker 00:
But not for the period in question.

[00:23:08] Speaker 04:
But it doesn't need to be for the period in question.

[00:23:11] Speaker 00:
What's the point of having administrative reviews if you're not trying to calculate an accurate margin for the period in question?

[00:23:18] Speaker 04:
We're not trying to calculate an accurate margin for the separate rate respondents.

[00:23:23] Speaker 04:
We're trying to give them.

[00:23:24] Speaker 00:
That's a pretty damning concession, isn't it?

[00:23:27] Speaker 04:
I don't think it is.

[00:23:28] Speaker 04:
I think the whole point of the statute is that

[00:23:31] Speaker 04:
the separate rate respondents are not going to get their own margin.

[00:23:34] Speaker 04:
There's no way that they're ever going to get a margin that actually reflects their dumping because we are never going to have that information.

[00:23:41] Speaker 00:
But you're not going to use the representative rates that you calculated for the individually investigated parties.

[00:23:47] Speaker 00:
And you're not going to calculate an accurate rate

[00:23:54] Speaker 00:
You're just going to use something from the past that has no necessary relationship to the current period?

[00:23:59] Speaker 04:
Commerce does not think that it has no relationship.

[00:24:02] Speaker 00:
Well, what's the basis for believing that it does have a relationship?

[00:24:06] Speaker 04:
Because BestPak instructed Commerce to figure out a rate that was going to bear some relationship to the separate rate respondent's actual dumping margin.

[00:24:16] Speaker 04:
When we don't have any information, which we don't have, Commerce thought this was the next best option, and that's its stated policy.

[00:24:24] Speaker 02:
But you didn't have any information with respect to cherishment and, shall we say, in the prior AR.

[00:24:31] Speaker 02:
So how is that information any more reliable than the information that's available to you with respect to the present AR?

[00:24:40] Speaker 04:
Well, at least that information was based upon dumping margins.

[00:24:45] Speaker 02:
Other than zero.

[00:24:48] Speaker 04:
Right, but I guess what I'm trying to say is that

[00:24:51] Speaker 04:
For that period of review, we were in section A of the statute, meaning commerce was able to calculate the separate rate using calculated dumping margins.

[00:25:03] Speaker 04:
And so if you want to think about the volume methodology as being representative, which we don't really like that word, but if you want to think of it as a crude way to get to something fair, in the prior review, you had enough information

[00:25:19] Speaker 04:
to get to something fair, whereas in this review, we don't.

[00:25:21] Speaker 01:
Ms.

[00:25:22] Speaker 01:
Burke, we'll give you two minutes of rebuttal.

[00:25:25] Speaker 01:
And we'll now hear from Mr. Luberta for the domestic industry.

[00:25:34] Speaker 01:
And you've got three minutes now.

[00:25:40] Speaker 06:
Thank you, Your Honor.

[00:25:42] Speaker 06:
Just continue with the conversation you were having with the government, Your Honors.

[00:25:47] Speaker 06:
The rate that was chosen from the prior review, the immediately prior review, was reflective of the potential for margins.

[00:25:54] Speaker 06:
Again, nobody knows what the actual margins were going to be.

[00:25:57] Speaker 02:
But why is it more accurate than the current rate, which the mandatory respondents have?

[00:26:05] Speaker 02:
Since neither was calculated for, at least setting aside Huawei, neither was calculated for Cherishment or Shaanxi.

[00:26:13] Speaker 02:
It doesn't have to be more accurate.

[00:26:15] Speaker 02:
There's no way to know.

[00:26:15] Speaker 02:
How can it be even as accurate, since it's not contemporaneous, as the current mandatory respondents in dumping margins is?

[00:26:25] Speaker 06:
Well, it has to be a reasonable method, which has to be based on some measure of substantial evidence.

[00:26:33] Speaker 06:
So there's no substantial evidence that supports a zero.

[00:26:35] Speaker 00:
Well, the reason what's going on here is that Congress does not like de minimis rates, and that anything is better than a de minimis rate.

[00:26:42] Speaker 00:
Isn't that what's involved here?

[00:26:45] Speaker 06:
The statute disfavors both AFA rates and de minimis rates.

[00:26:50] Speaker 02:
Why is that, by the way?

[00:26:52] Speaker 02:
What is the policy underlying 735C5A of saying we throw out de minimis rates?

[00:27:01] Speaker 02:
I wasn't able to find anything that suggests why that is something that makes sense.

[00:27:07] Speaker 06:
The reason behind it is based on, so AFA, I think everybody acknowledges is an exceptional circumstance.

[00:27:15] Speaker 02:
AFA, I understand, but I don't understand the focus on de minimis and zero as being somehow unreliable.

[00:27:22] Speaker 02:
It's not that it's unreliable, but... Why do you throw it out in the averaging?

[00:27:28] Speaker 06:
There may be cases in which you wouldn't throw it out.

[00:27:30] Speaker 02:
I understand, but there is... I'm looking for you as an expert in this field to tell me why it is that the statute

[00:27:37] Speaker 02:
735C5A says, throw it out.

[00:27:42] Speaker 06:
Because it's presumed not to have been earned by the company that's applying for it.

[00:27:50] Speaker 02:
Suppose the company decides, you know, we've got hit by this investigation with a dumping rate, an anti-dumping order, and we are going to comply.

[00:28:00] Speaker 02:
We're going to not dump anymore.

[00:28:03] Speaker 02:
And so they go to zero.

[00:28:05] Speaker 02:
Why haven't they earned a zero rate in that situation?

[00:28:10] Speaker 02:
If they've actually gone to zero and you can show they've gone to zero.

[00:28:12] Speaker 02:
But Congress has concluded that they went to zero when they give them a zero rate, right?

[00:28:17] Speaker 06:
Congress has concluded that the examined respondents got a zero.

[00:28:24] Speaker 02:
Yes, that's what I'm talking about.

[00:28:26] Speaker 02:
I'm looking at why it is that those examined respondents having a zero rate isn't an important data point.

[00:28:32] Speaker 02:
What's the policy behind saying it isn't?

[00:28:34] Speaker 06:
Well, in an original investigation, it would be an important data point, which is why I think the statute says that you can average them in an investigation where that's the only information you have, because you have no other prior information you can rely on.

[00:28:50] Speaker 06:
In a review, the agency has prior experience, and in this case had two previous reviews of less than fair value,

[00:29:00] Speaker 06:
investigation in which there were no evidence that any other respondent previously ever earned a zero.

[00:29:05] Speaker 00:
But look, the world has changed between the two reviews.

[00:29:09] Speaker 00:
With respect to the individually investigated respondents, they go from having a substantial dumping margin to having de minimis.

[00:29:18] Speaker 00:
Doesn't that suggest that the same thing would be true of other importers as well?

[00:29:26] Speaker 06:
Not necessarily, because we don't know how those other importers priced.

[00:29:29] Speaker 00:
But it certainly doesn't suggest that the other importers are continuing to dump, does it?

[00:29:35] Speaker 06:
It doesn't suggest that they're not.

[00:29:37] Speaker 06:
And if you look at the history of this case.

[00:29:39] Speaker 00:
In other words, you can't tell one way or the other?

[00:29:41] Speaker 06:
I think you can make a reasonable assumption.

[00:29:44] Speaker 06:
If you look at the previous review periods where Jacobi's margin went down from 1,800 to 1,900.

[00:29:52] Speaker 00:
But what I'm asking is why would you think that the previous review

[00:29:56] Speaker 00:
period margin would be accurate with respect to the non-investigated parties when it's shown to be inaccurate with respect to the investigated parties.

[00:30:06] Speaker 06:
If there was some homogenous nature by how these numbers moved, Congress made a determination that if we put, if you calculate an actual margin for somebody, there are no outlier margins.

[00:30:25] Speaker 06:
We're going to go ahead and use those.

[00:30:28] Speaker 06:
But we would assume, or commerce has the ability to go back and look at behavior of the respondents.

[00:30:34] Speaker 06:
So when the margin goes down for one, yet for Jacobi, but in the second review, but it actually goes up for Hua Hui, to assume that because Jacobi went to zero, you get this outlier number.

[00:30:49] Speaker 06:
I mean, that wasn't my choice.

[00:30:51] Speaker 06:
It was Congress's choice.

[00:30:52] Speaker 06:
But because Jacobi goes to,

[00:30:55] Speaker 06:
from 18.19% down to 11 cents, Huawei actually went up to 44.

[00:31:01] Speaker 06:
So to make the assumption that these folks who've never demonstrated low or de minimis or zero rates are entitled to that, commerce was entitled to make under the statute, Congress gave them the ability to choose between the less contemporaneous, more specific

[00:31:21] Speaker 06:
versus the more contemporaneous, less specific.

[00:31:24] Speaker 00:
You asked, did you not, that commerce collect data for the individual respondents, right?

[00:31:30] Speaker 06:
We did, Your Honor.

[00:31:31] Speaker 06:
We asked that they do that because our choice was the trial court had left us with the option that based on the decision of trial court, there could be nothing other than use of the zeros unless other information was collected.

[00:31:45] Speaker 06:
But the statute was written specifically not to require commerce to collect data.

[00:31:49] Speaker 06:
But our option

[00:31:51] Speaker 06:
for our side was, well, if we're going to get stuck with a zero or go get data and maybe get something else, we ask for more data.

[00:31:59] Speaker 06:
But we don't think that's what the statute requires.

[00:32:01] Speaker 01:
Mr. Liberta will give you two minutes of rebuttal.

[00:32:04] Speaker 01:
And let's hear from Mr. Menegas.

[00:32:07] Speaker 06:
Thank you, Your Honor.

[00:32:16] Speaker 05:
May it please the Court, just for

[00:32:19] Speaker 05:
For the sake of clarity, I represent Shaanxi DMD, and I'm making a consolidated argument for the various separate companies, including Beijing Pacific and Cherishment.

[00:32:29] Speaker 02:
Is Cherishment and Beijing Pacific, are they the same companies?

[00:32:31] Speaker 05:
They've been collapsed, I believe, generally.

[00:32:34] Speaker 02:
Okay, so we're only talking about a total of three separate respondents in this case, right?

[00:32:38] Speaker 02:
Two groups, Shaanxi DMD on the one hand.

[00:32:41] Speaker 02:
Shaanxi and Cherishment, right?

[00:32:43] Speaker 02:
Right.

[00:32:43] Speaker 05:
Okay.

[00:32:44] Speaker 05:
Right.

[00:32:44] Speaker 05:
And I could maybe pick up on Judge Bryce's question from earlier.

[00:32:48] Speaker 05:
citing to page five of CherishMet's brief, they did also request voluntary responded status.

[00:32:53] Speaker 05:
CherishMet did.

[00:32:54] Speaker 05:
CherishMet.

[00:32:54] Speaker 05:
But did, did, while we also?

[00:32:57] Speaker 05:
And at the top paragraph in that, I want to quote what the government said in its responded selection memo, quote, the department recommends not calculating individual dumping margins for any non-selected companies that may place full responses on the record.

[00:33:11] Speaker 05:
So the position of the government is we will shun anything you attempt to put on the record.

[00:33:16] Speaker 05:
And it does take a lot of effort and time

[00:33:18] Speaker 05:
to gather all your costs and sales information.

[00:33:21] Speaker 05:
And so in this case, apparently, Wahqui and Cher Schmidt selected not to submit that information that the government clearly said they were not interested in getting.

[00:33:30] Speaker 05:
But this court in Amanda Foods and the trial court in Amanda Foods and this court in Bestpac said, look, you can always go back and get more information, but you can't make a decision based on this record, based on no information.

[00:33:43] Speaker 05:
And so we just think they were given multiple opportunities.

[00:33:46] Speaker 05:
And Sean C. DMD's position

[00:33:48] Speaker 05:
in its brief was that commerce was not compelled to do any particular thing on remand.

[00:33:52] Speaker 05:
The judge left it wide open to even open the record up in any way they saw fit.

[00:33:57] Speaker 05:
And they chose not to do it, and they delivered to minimus margins.

[00:33:59] Speaker 05:
So we hope the court could simply affirm on that basis.

[00:34:02] Speaker 05:
But we also, I'm very glad to hear what I've heard from the bench today, because it's covered a lot of the ground that I hope to cover.

[00:34:10] Speaker 05:
But what you've heard from the government, their position is the statute gives us two choices.

[00:34:14] Speaker 05:
Pick a representative sample or a non-representative sample.

[00:34:17] Speaker 05:
And I agree with Judge Bryson's suggestion that that's rather silly and totally unreasonable that could never survive a Chevron II examination.

[00:34:27] Speaker 02:
Can you help me with the question I asked your opposing counsel?

[00:34:31] Speaker 02:
What's the policy underlying this?

[00:34:35] Speaker 02:
hostility, if I can use that word, to zero margins.

[00:34:39] Speaker 05:
I just found that... As we typically represent respondents, we don't appreciate the policy.

[00:34:45] Speaker 02:
You may not like it, but can you tell me what it is?

[00:34:47] Speaker 05:
It does appear that there's a slant in the statute, but there's a savings clause, as we've all discussed here, that when all the margins are zero and de minimis, then the department has the opportunity to average those, and the SAA indicates, you know, unless it wouldn't be reasonable.

[00:35:04] Speaker 05:
So we think

[00:35:05] Speaker 05:
What the trial court merely did is go back and explain why the contemporaneous record is not reasonable.

[00:35:11] Speaker 05:
When you set up the statutory scheme, you decided to select two respondents, you decided to shun all other information in the case, that leads to the only logical conclusion that they deemed that that selection of the two respondents was going to be representative of the parties they had no interest or ability to review in detail.

[00:35:29] Speaker 05:
And so they just don't like the result.

[00:35:31] Speaker 05:
I wonder if the court's aware that in an investigation, de minimis is 2.0 margin points.

[00:35:37] Speaker 05:
In a review, it goes way down to 0.5.

[00:35:41] Speaker 05:
So we have a very high standard to even get to de minimis, and the two largest exporters got to de minimis, and now they don't like it.

[00:35:47] Speaker 05:
So if even one of them had a 0.6, they would not dispute that it was representative of Chauncey DMD and Cherishments rate.

[00:35:53] Speaker 05:
But the minute it drops to 0.5 or 0.4, it's totally unrepresentative.

[00:35:57] Speaker 02:
And that happened, I guess, in this case with the preliminary investigation.

[00:36:00] Speaker 02:
It was $0.05.

[00:36:03] Speaker 02:
And then it went down to zero.

[00:36:04] Speaker 02:
If it had stayed at $0.05, then everybody would be at $0.05.

[00:36:08] Speaker 05:
Right.

[00:36:08] Speaker 05:
And we would have certainly been happy, and probably the petitioners would have appealed.

[00:36:12] Speaker 05:
But so it's a very problematic situation we're in.

[00:36:17] Speaker 05:
And the government mentioned this sampling

[00:36:20] Speaker 05:
FR notice for comment to do more sampling.

[00:36:22] Speaker 05:
And they've done almost no sampling since the 2013 notice.

[00:36:25] Speaker 05:
And the criteria in there says, well, we have to first pick three respondents in the criteria.

[00:36:30] Speaker 05:
So guess what?

[00:36:30] Speaker 05:
Now they're not picking three respondents ever because they don't want to trigger their sampling methodology because they don't think they have the resources to review three or more respondents.

[00:36:38] Speaker 05:
So we're stuck with this two largest exporter formula in almost all of our cases.

[00:36:42] Speaker 05:
And we'd sure love to get some guidance from this court that says you can't say that's totally unrepresentative just because it dips to 0.5.

[00:36:51] Speaker 05:
And so, I mean, I don't know if the court has any questions for me, but I just think the statutory scheme contemplates you might not have information about the separate companies, and that you're going to capture either a statistically valid sample or the largest group of sales you can gather, which is usually the two largest formula, and it usually captures 60% of exports.

[00:37:10] Speaker 05:
They usually try to meet that barrier.

[00:37:13] Speaker 05:
I can't say on this record whether they hit the 60%, but that used to be their policy.

[00:37:17] Speaker 05:
that will take the two largest or up to 60%.

[00:37:20] Speaker 05:
And over the years, they've just winnowed it down to two in almost every case, citing this lack of resources.

[00:37:25] Speaker 05:
They can't now blame us and apply an adverse inference against us for their lack of resources.

[00:37:29] Speaker 05:
This court in Bespec said that's not OK.

[00:37:32] Speaker 01:
And with that, I rest.

[00:37:34] Speaker 01:
Thank you, Mr. Meneghez.

[00:37:36] Speaker 01:
Ms.

[00:37:36] Speaker 01:
Kramer has a little time, five minutes.

[00:37:45] Speaker 03:
Thank you.

[00:37:47] Speaker 03:
We have to remember that the overall purpose of the anti-dumping laws is accuracy.

[00:37:51] Speaker 03:
This court has said that all the way back to Roan and perhaps before.

[00:37:55] Speaker 03:
So it is the case that the separate rate must be accurate, just as it must be accurate for the mandatory respondents.

[00:38:02] Speaker 03:
The expected method is the one method called out in the statement of administrative action that considered the authoritative interpretation of terms in the statute

[00:38:12] Speaker 03:
And as the lower court, the trade court has said, it's unreasonable to take that one expected method and deem it the one method not to use.

[00:38:20] Speaker 03:
They said that in the Amanda Foods case.

[00:38:22] Speaker 03:
I think the logic there is noteworthy.

[00:38:28] Speaker 03:
Mr. Medagas touched on what happened with, and Judge Brason, what happened with CCT.

[00:38:33] Speaker 03:
And that shows the illogical position of the government that

[00:38:38] Speaker 03:
or really maybe of the statute that when you have a five-cent rate, that's okay, but if that five-cent rate, if that rate goes below de minimis, then for our client, its margin increased eightfold.

[00:38:50] Speaker 03:
That can't be a reasonable outcome in view of the other objective criteria we have, which are the decline in anti-dumping margins since the order all the way down to the third review, and the decline in financial ratio is an objective factor.

[00:39:04] Speaker 03:
It's on the record.

[00:39:05] Speaker 03:
and also the surrogate values that are all new in this review period.

[00:39:07] Speaker 02:
Do you happen to know what the conversion factor is between cents per kilogram versus percentage?

[00:39:14] Speaker 03:
It's a good question, and I... We've got apples and oranges floating around in this case.

[00:39:19] Speaker 03:
I was doing some back of the envelope to try to be able to give the court something that's concrete on this, but it... Just an approximation, ballpark figure.

[00:39:26] Speaker 02:
Just think of it.

[00:39:27] Speaker 03:
If you import a ton of... You don't have to work me through the math.

[00:39:32] Speaker 02:
Just give me a ballpark figure at the bottom of the envelope.

[00:39:35] Speaker 03:
Yeah, it's based on proprietary information, so I can't give it.

[00:39:38] Speaker 03:
But this is what I can say.

[00:39:40] Speaker 03:
Based on a ton, our client is paying $440 each for each ton that it imports.

[00:39:47] Speaker 03:
So that's significant if they're importing.

[00:39:49] Speaker 02:
But that doesn't tell me what the percentage is.

[00:39:51] Speaker 02:
It doesn't tell me whether that's 1% or

[00:39:55] Speaker 03:
Yeah, I apologize that that's on the proprietary record and I can't divulge it.

[00:40:00] Speaker 03:
But on the, Judge Bryson, you were asking before about specificity, that Congress was favoring specificity.

[00:40:07] Speaker 03:
Well, it seems like to us that that's a results-oriented outcome in view of what happened in the Home Meridian case where a respondent came forward and said, use our specific pre-POR data rather than contemporaneous data that was a basket category.

[00:40:22] Speaker 03:
And commerce urged and was ultimately upheld here that commerce could elevate contemporaneity over specificity.

[00:40:33] Speaker 03:
Here, they're asking for the opposite.

[00:40:35] Speaker 03:
And it seems like that's really in order to shut the book on the current review period and to instead look back to what happened in a prior review period just to give our client a margin.

[00:40:48] Speaker 03:
Another factor I wanted to bring up is that it's not even really correct to call the prior review period temporally proximate to this review period when you think about the fact that the first month of a prior review period is separated by 24 months from the end of the next review period.

[00:41:06] Speaker 03:
So certainly it's reasonable to conclude that prices change, that surrogate values change, as we have already indicated.

[00:41:14] Speaker 03:
And for that reason, because there's no evidence on the record indicating that that 44 cent rate has any connection to the current period review, we ask that you overturn the trade court.

[00:41:25] Speaker 02:
Is it your understanding, based on commerce's policy as articulated in the frozen shrimp and frozen fish fillets cases and so forth, and in this case, is it your understanding that if this case went on and had five more administrative reviews,

[00:41:41] Speaker 02:
And Jacobi and CCT were the mandatory respondents in each of those.

[00:41:45] Speaker 02:
And in each of those, zero was the margin.

[00:41:49] Speaker 02:
That the margin for Huawei would remain at $0.44?

[00:41:57] Speaker 02:
Even if Huawei was not investigating.

[00:42:01] Speaker 03:
Commerce said in the issues and decision memo that it looks back to the prior year's review in this kind of circumstance.

[00:42:06] Speaker 03:
So if we carry that forward, yes, it would seem that Commerce would do that each time.

[00:42:11] Speaker 03:
But it also says that it makes that decision on case-specific basis.

[00:42:17] Speaker 03:
So if we take that at face value, they are supposed to examine the record each time.

[00:42:23] Speaker 03:
But here they didn't examine the record, as for the reasons I indicated, regarding what we know about the objective factors that changed since the prior review.

[00:42:31] Speaker 02:
So your suggestion is that perhaps after an additional year went by, they would say, well, now contemporaneity is not so close.

[00:42:40] Speaker 02:
We're going back two years in effect, even though the 44 was assessed for the immediate preceding year.

[00:42:45] Speaker 02:
That is what they've been doing in these cases, is just ignoring contemporaneity and looking back to where... Are there any cases, to your knowledge, in which they have double jumped in effect and had gone back to a year, such as in this case, the prior administrative review, used that for the next administrative review and then justified the very next administrative review

[00:43:09] Speaker 02:
as having a particular margin based on the fact that the attributed review for the previous year, which came from the year before that, was positive.

[00:43:22] Speaker 02:
Do you know of any such cases?

[00:43:23] Speaker 03:
Yeah, I can't name such a case, but I do believe there are any, but I don't want to misbehave, so I won't front it.

[00:43:29] Speaker 01:
Thank you.

[00:43:29] Speaker 01:
Thank you, Ms.

[00:43:29] Speaker 01:
Pramup.

[00:43:30] Speaker 01:
We'll hear further rebuttal on the cross-appeal from Ms.

[00:43:35] Speaker 01:
Burke, two minutes, and then from Mr. Liberta.

[00:43:40] Speaker 04:
Thank you.

[00:43:40] Speaker 04:
Just picking up on where you left off.

[00:43:43] Speaker 04:
In the break rotor's determination, Commerce was looking at a dumping history for the order over the course of eight years.

[00:43:53] Speaker 04:
I'm not totally sure this is accurate, but I think it was almost a full eight years of no dumping.

[00:44:00] Speaker 04:
In that situation, Commerce looked back and said, okay, it's not reasonable not to

[00:44:05] Speaker 04:
average the de minimis margins.

[00:44:07] Speaker 04:
Now, I don't know where the tipping point is, but there's obviously a tipping point between a three-year history where it looks like there's been dumping and an eight-year history where there hasn't.

[00:44:16] Speaker 00:
Is it accurate to say that if Commerce had determined a five-cent margin here that it would have used that for the non-investigated respondents?

[00:44:27] Speaker 04:
Yes.

[00:44:28] Speaker 02:
If that's true that that's... That was the preliminary investigation number that they came up with for

[00:44:35] Speaker 02:
Maybe Shansi, I think.

[00:44:36] Speaker 04:
Yeah, if that's not the minimus, then that's correct.

[00:44:39] Speaker 04:
Yes.

[00:44:39] Speaker 02:
No, CCT, I'm sorry.

[00:44:42] Speaker 04:
I'd like to just say a couple words about the expected method.

[00:44:44] Speaker 04:
I don't know the answer to the court's question about what the rationale is about why the statute is written the way it is, why all we have in terms of legislative history is the statement of administrative action.

[00:44:55] Speaker 04:
I will say, though, that although we use the statute and the SAA by analogy for these administrative reviews, it is important to remember that it was written

[00:45:04] Speaker 04:
for investigations, and it technically applies for investigations.

[00:45:06] Speaker 04:
So when you're in a situation where you're trying to figure out whether there's been dumping, maybe it makes sense as a mathematical proposition to throw out the high and the low when you're at those initial stages.

[00:45:20] Speaker 04:
And when you get to the SAA, you also have to remember that it's quite possible that Congress and the administration were assuming that there would not just be de minimis and zero margins, there would also be

[00:45:33] Speaker 04:
AFA margins, because if you don't have AFA margins and you just have de minimis and zero margins, you don't have an order.

[00:45:42] Speaker 04:
There is no anti-dumping order if everything's been zero.

[00:45:46] Speaker 02:
Well, if that's the result of the investigation, but if that comes up in an administrative review, you certainly can have those numbers come up.

[00:45:54] Speaker 02:
That's right.

[00:45:54] Speaker 02:
And the SAA applies to reviews as well as investigations, I believe.

[00:45:57] Speaker 02:
Does it not?

[00:46:00] Speaker 04:
No.

[00:46:03] Speaker 04:
is this part of the SAA is the explanation for the part of the statute that just applies to investigations.

[00:46:10] Speaker 00:
So why in an investigation when the investigative respondents all have zero margins is at the end of the investigation, but in an administrative review where the same thing happens, you don't use the de minimis margins?

[00:46:33] Speaker 04:
In an investigation, if there are rates calculated and there are no dumping margins calculated, then there is no basis upon which to issue an order.

[00:46:43] Speaker 04:
I'm not sure I understand the question.

[00:46:44] Speaker 00:
Well, I'm just saying that in an initial investigation, if the investigated respondents end up with de minimis rates, you don't try to impose a dumping margin on anybody.

[00:46:56] Speaker 00:
In an administrative review, if the investigated respondents have de minimis rates, do you think, well, that's not going to lead us to assume that the other parties aren't dumping?

[00:47:07] Speaker 04:
Well, I mean, in an administrative review, even if there are a series of zero years with zero rates, Commerce still has an obligation every five years to do a sunset review and determine whether there should be an order.

[00:47:22] Speaker 04:
So it sort of accomplishes the same thing.

[00:47:25] Speaker 01:
Thank you, Ms.

[00:47:26] Speaker 01:
Burke.

[00:47:27] Speaker 01:
We'll hear two minutes, if you need to, for Mr. LeBurgan.

[00:47:36] Speaker 06:
Thank you.

[00:47:36] Speaker 06:
And looking at the statute quickly, the statute taken as a whole is disfavoring using AFA and using the de minimis.

[00:47:46] Speaker 06:
And just picking up on Judge Dyke's last question, there is sort of a shift of burden in investigation

[00:47:54] Speaker 06:
when, as representing petitioners, I have to prove dumping.

[00:47:58] Speaker 06:
Our petition has to get shown that we've made all the allegations necessary to show dumping an injury.

[00:48:05] Speaker 06:
The burden is on the government and the domestic industry to demonstrate that dumping has occurred.

[00:48:12] Speaker 06:
In a review, there's something of a shift.

[00:48:14] Speaker 06:
Now the respondents' data is being looked at to determine, having already been found to be dumping,

[00:48:22] Speaker 06:
whether that dumping has gone away.

[00:48:25] Speaker 00:
But commerce isn't giving the non-individually investigated parties the opportunity to show that their margins have changed.

[00:48:33] Speaker 06:
Congress said they didn't have to give it to everybody to do it, recognizing that it would be an impossible burden.

[00:48:40] Speaker 06:
I mean, I have cases where there are hundreds of respondents.

[00:48:43] Speaker 06:
There aren't hundreds in this case.

[00:48:45] Speaker 06:
There potentially could be dozens.

[00:48:47] Speaker 06:
But everybody who's here today, but one,

[00:48:50] Speaker 06:
of them has had a chance to demonstrate that they weren't dumping by looking at their actual margins, and not one of them has in the past.

[00:48:59] Speaker 00:
So commerce, recognizing that Congress gave them a choice... Well, I mean, none of the non-investigated respondents was given the opportunity to submit data.

[00:49:10] Speaker 06:
Not in this review, but in previous reviews, it's not like it's completely unfair that they never get chosen.

[00:49:16] Speaker 00:
It doesn't seem to make sense to say that

[00:49:20] Speaker 00:
The failure to consider their data in this review is reasonable because they didn't submit information in some previous review.

[00:49:28] Speaker 06:
The statute is set out in such a fashion that they don't have to consider all of it, recognizing that it would be impossible for commerce to consider everybody's data.

[00:49:37] Speaker 06:
The outcome, based on what the lower court did here, would be that in every single case,

[00:49:44] Speaker 06:
You would always have to use the current data no matter what, but the statute specifically says commerce can use any other reason.

[00:49:50] Speaker 00:
No, I don't think that's the point.

[00:49:51] Speaker 00:
I think the point is that if you're going to use the prior data, you have to have some reason to believe that that is representative of what the current data is.

[00:50:00] Speaker 00:
And on this record, commerce hasn't been able to point to any reason to believe that the margins for the non-investigated respondents would be accurate for the current period.

[00:50:09] Speaker 06:
There's also no evidence in the court below said there is absolutely no evidence to tie the pricing of these non-investigated respondents to the pricing of the respondents who were looked at.

[00:50:22] Speaker 02:
Would you agree that the reason, the justification for using the mandatory respondents numbers with respect to the separate respondents is that there's an assumption, subject to rebuttal, but an assumption that those rates are represented?

[00:50:38] Speaker 06:
Yes, except in the case where you have the AFA.

[00:50:42] Speaker 02:
So you disagree with the government's position, which is that representativeness has nothing to do with it.

[00:50:48] Speaker 06:
No, I don't disagree.

[00:50:49] Speaker 06:
It's not that representativeness has nothing to do with it.

[00:50:51] Speaker 06:
They are not specifically representative.

[00:50:55] Speaker 06:
But they assume to be the best information that you have on this record, except in the case where there is a zero de minimis or AFA.

[00:51:06] Speaker 01:
Thank you, counsel.

[00:51:08] Speaker 01:
We'll take the case under advisement.

[00:51:10] Speaker 06:
Thank you.