[00:00:01] Speaker 03:
We have five cases on the calendar this morning.

[00:00:04] Speaker 03:
A case from the Court of International Trade in New York.

[00:00:10] Speaker 03:
Three patent cases, one from the PTO, and two from district courts.

[00:00:15] Speaker 03:
And a case from the Merit Systems Protection Board that's been submitted only on the brief, and will therefore not be argued.

[00:00:24] Speaker 03:
The first case is Changzoo Flooring et al.

[00:00:30] Speaker 03:
This is the United States, 2015, 1899.

[00:00:33] Speaker 03:
Mr. Grimson, when you're ready.

[00:00:39] Speaker 00:
Good morning and may it please the court, Jeffrey Grimson, for Appellant Fine Furniture.

[00:00:47] Speaker 00:
I'm presenting argument as well for the other eight appellants.

[00:00:52] Speaker 00:
In the anti-dumping case on multi-layered wood flooring, Commerce chose three companies.

[00:00:57] Speaker 00:
from among a pool of Chinese exporters who answered the quantity and value questionnaire to be representative of that group.

[00:01:06] Speaker 00:
Yet when those three companies got zero dumping margins, Commerce refused to apply the average of those under Congress's expected method to the other cooperating companies.

[00:01:16] Speaker 00:
Commerce justified its refusal to apply the zeros to the non-selected cooperating companies on two bases, both of which must be rejected.

[00:01:26] Speaker 00:
First, Commerce looked to a later time period when Commerce conducted an administrative review of some of the eight appellants and found above de minimis margins.

[00:01:36] Speaker 00:
I will discuss this later, but the Albemarle Court considered the same logic and rejected it.

[00:01:41] Speaker 03:
This case has been up and down to the CIP, CIT, and Congress three or four times.

[00:01:52] Speaker 00:
There have been five decisions of the Trade Court

[00:01:55] Speaker 00:
on this case, including some related to one consolidated plaintiff who in fact during the litigation got a zero dumping margin and was therefore excluded from the anti-dumping order.

[00:02:07] Speaker 03:
Didn't they finally get it right?

[00:02:09] Speaker 00:
They did not finally get it right.

[00:02:11] Speaker 00:
What they finally decided is that if you started anti-dumping case against China and under commerce's methodology, they presume that all of China is one entity.

[00:02:22] Speaker 00:
That's a rebuttable presumption.

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And companies have to go forward to the Commerce Department and say, we are not part of the Chinese government.

[00:02:30] Speaker 00:
We're entitled to a separate rate.

[00:02:32] Speaker 00:
Commerce did follow this normal process at the beginning of the case, but they still have to decide who to examine to determine dumping margins.

[00:02:41] Speaker 00:
So they send out quantity and value questionnaires, and they make them available as well in the Federal Register.

[00:02:47] Speaker 02:
We don't know that in this case, whether the three that were selected

[00:02:55] Speaker 02:
have volumes representing a majority of the merchandise at issue, unlike in Albemarle?

[00:03:04] Speaker 02:
I assume your view is that doesn't matter, but I'm just asking a factual question.

[00:03:09] Speaker 00:
As a factual question, we know nothing about the 110 companies who didn't answer, but we know the one thing that does matter.

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And that is, under the law and under commerce's view of Chinese cases, those 110 companies are the Chinese government.

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They are the PRC-wide entity.

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They will never get the result of the expected method.

[00:03:30] Speaker 00:
And commerce is trying to say, we've got the 80 companies here who came forward and proved they are not part of the 110.

[00:03:36] Speaker 00:
These 80 companies, we selected three.

[00:03:40] Speaker 00:
They all got zeros.

[00:03:41] Speaker 00:
And the expected method and the whole idea of representativeness is, what should be the rate you apply to the others in the 80 companies?

[00:03:50] Speaker 02:
I'm not quite hearing the answer to the question I'm trying to ask.

[00:03:54] Speaker 02:
Forget about the China-wide entity, focus just on what is it, the 79 companies that responded and is that the number that was found to be independent of the?

[00:04:07] Speaker 00:
Throughout the course of the case, the number has gone from 79 to 81, depending on who... Doesn't matter.

[00:04:13] Speaker 00:
There are companies that answered, 79 to 81.

[00:04:16] Speaker 00:
And there's a companies that did not answer the hundred.

[00:04:18] Speaker 00:
Right.

[00:04:19] Speaker 02:
And how many of the 79 were found to have justified in showing independence from the Chinese government?

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All of them.

[00:04:28] Speaker 02:
All of them.

[00:04:29] Speaker 00:
Yeah.

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And minus maybe three.

[00:04:30] Speaker 00:
Okay.

[00:04:30] Speaker 02:
So looking at just that group.

[00:04:33] Speaker 00:
Yes.

[00:04:34] Speaker 02:
Do we know whether the three mandatory respondents, the one selected for individual investigation represent in the volume that they

[00:04:45] Speaker 02:
sent into the U.S., a majority of what was sent into the U.S.

[00:04:49] Speaker 02:
or not?

[00:04:50] Speaker 00:
We know that Commerce chose them because they were the biggest.

[00:04:54] Speaker 00:
That doesn't answer the question.

[00:04:55] Speaker 00:
No, we don't know that they were the majority.

[00:04:58] Speaker 00:
We don't know they were the majority.

[00:05:01] Speaker 02:
I understand perfectly well that the better reading in your view of Albemarle is that it doesn't matter whether they're the majority, that anything that satisfies the two

[00:05:12] Speaker 02:
conditions for using either sampling or the largest number means there's a congressionally established presumption of representativeness and they have to rebut it and they didn't.

[00:05:22] Speaker 00:
That's correct.

[00:05:23] Speaker 00:
And under Commerce's sampling statute, they can either do statistical sampling, which it did not do in this case, or Congress says, pick the respondents representing the largest volume until you reach the point that it's not practicable to continue

[00:05:39] Speaker 00:
choosing more.

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Remember, commerce starts out all this.

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The law and the WTO says, you're supposed to examine every company individually.

[00:05:46] Speaker 00:
But commerce says, no, we do not have resources to do that.

[00:05:48] Speaker 00:
Congress gave them the authority to select a smaller number, including the largest volume, which is the specified language.

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And commerce did that in this case.

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They picked three companies who were perfectly representative, so long as they were dumpers.

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Once they dropped below a de minimis, then suddenly commerce has a lot of questions about

[00:06:09] Speaker 00:
whether they represent the whole industry.

[00:06:11] Speaker 00:
And they make many inferences about these 110 companies, but I would just emphasize again that the representativeness of the average that you're seeking here should be representative to those who are going to get it, not the 110 who are not.

[00:06:29] Speaker 01:
We understand your albumar argument, but could you explain what do you think commerce should have done back at the time when

[00:06:38] Speaker 01:
It had the information from the three mandatory respondents and realized that there were over 100 exporters that hadn't responded.

[00:06:47] Speaker 01:
And they had a suspicion that many of them, or at least some of them, could have potentially become a mandatory respondent if they had responded.

[00:06:57] Speaker 01:
And so therefore, that would have resulted in a separate rate above de minimis.

[00:07:03] Speaker 01:
So at that time, if they felt convinced

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or suspicious that a de minimis separate rate wouldn't really represent the separate respondents' economic reality.

[00:07:14] Speaker 01:
What should have Commerce have done more than what it did, which was rely on a set of inferences?

[00:07:22] Speaker 00:
Well, this is a frustrating point because they didn't raise this inference until the margins dropped to zero.

[00:07:31] Speaker 00:
Let's put the inferences aside.

[00:07:32] Speaker 00:
What should Commerce have done?

[00:07:34] Speaker 00:
They already declared these 110

[00:07:37] Speaker 00:
companies as part of the China-wide entity.

[00:07:41] Speaker 00:
They weren't going to get a rate.

[00:07:42] Speaker 00:
Commerce stopped caring about them early.

[00:07:43] Speaker 01:
I guess the question is, if we follow Albemarle, the requirement would be that commerce has to come up with some evidence that shows why the separate rate should be different from the calculated rate from the mandatory respondents.

[00:08:02] Speaker 01:
I'm asking you, what are some examples of what that evidence is or should be?

[00:08:08] Speaker 00:
I can't think of evidence that they would gather from the 110 companies who had already refused to cooperate in the case.

[00:08:18] Speaker 00:
So it's truly a hypothetical that would never occur.

[00:08:22] Speaker 00:
And it happens in every Chinese case that there are entities that don't answer.

[00:08:26] Speaker 00:
So it can't be the test that you get to the end of a case with the zeros.

[00:08:31] Speaker 01:
Let's start with a different hypothetical.

[00:08:33] Speaker 01:
Let's say there's 400 exporters.

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And then Commerce sends out the Q&V questionnaires to all 400 and gets back 10 responses.

[00:08:44] Speaker 01:
So from the 10, they pick three mandatory respondents.

[00:08:47] Speaker 01:
And then let's say they're all de minimis.

[00:08:51] Speaker 01:
Under those kinds of skewed circumstances where there's 390 other exporters out there that didn't respond, it seems

[00:09:03] Speaker 01:
It seems a little much to assume that these three mandatory response that were chosen truly are the three largest exporters when you can't possibly know that when there's 390 out there.

[00:09:14] Speaker 00:
But the purpose of the expected method is to find the margin that applies to those within the pool that you're going to apply it to.

[00:09:23] Speaker 00:
So I guess what I would say is if commerce said everybody who shows up in this room today through council and gives a quantity of value, we're going to select from those.

[00:09:33] Speaker 00:
companies the largest and they do so.

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Those three get zeros.

[00:09:37] Speaker 00:
We don't care about companies that never made it through the door because they're not going to get the expected method.

[00:09:42] Speaker 00:
They're not going to get any average calculated based on what Congress is asking them to do.

[00:09:48] Speaker 00:
Congress is not saying calculate the margin based on companies who can never get it.

[00:09:55] Speaker 00:
Think about representativeness in terms of companies who are deemed to be unrepresentative

[00:10:01] Speaker 00:
Remember that the whole idea of separate rate companies is that these companies are, by law, separate from the 110 who didn't answer.

[00:10:10] Speaker 00:
They have nothing to do with them.

[00:10:12] Speaker 00:
So whatever those 110 companies are doing, it is part of the China-wide entity.

[00:10:19] Speaker 00:
This came up in the fine furniture argument about the PRC.

[00:10:24] Speaker 01:
So your position is if there's 100 companies that refuse to respond or 1,000 companies that refuse to respond,

[00:10:31] Speaker 01:
commerce is stuck, it just has to follow the expected method.

[00:10:36] Speaker 00:
And BESPAC says when commerce chooses a method, if there's later developed parts of the record that they would have wished they more fully developed, they are still stuck with their method.

[00:10:48] Speaker 00:
And here, they're not stuck with the method.

[00:10:49] Speaker 00:
They're actually asked to follow the expected method.

[00:10:53] Speaker 00:
When Congress says they expect commerce to follow this method, that is... But it's not a hard wire.

[00:11:01] Speaker 01:
if there's conditions where the expected method can be not followed, right?

[00:11:06] Speaker 00:
And those weren't present here.

[00:11:07] Speaker 00:
And Albemarle said, either you have to find that applying the method is not feasible.

[00:11:11] Speaker 00:
Commerce is not arguing that.

[00:11:12] Speaker 00:
It's very easy to apply zeros.

[00:11:14] Speaker 00:
They did it following this court's decision in Albemarle.

[00:11:17] Speaker 00:
So not feasible is just not on the table.

[00:11:19] Speaker 00:
The second is, would the zeros be not reasonably representative of a potential dumping margin

[00:11:27] Speaker 00:
of the cooperating companies.

[00:11:29] Speaker 00:
Commerce has really flipped that standard here.

[00:11:31] Speaker 00:
And they've said there's a potential that they might have dumped.

[00:11:34] Speaker 00:
But if you look at the SAA, strictly speaking, it says, no, the zeros, you have to find that the zero, the average can't be a potential dumping margin.

[00:11:43] Speaker 00:
Commerce has not ruled out that the companies couldn't have gotten a zero, nor could they when our client find furniture gave a full response.

[00:11:53] Speaker 00:
They gave surrogate value data.

[00:11:54] Speaker 01:
So then, going back to my hypothetical, what would be the evidence that commerce, in your mind, would need to have in order to show that the separate rate respondents are not behaving the same way as the mandatory respondents?

[00:12:06] Speaker 00:
Well, I mean, commerce struggled with this issue already in this case and found that there was nothing.

[00:12:12] Speaker 01:
I'm asking you a hypothetical.

[00:12:14] Speaker 00:
I don't think there is evidence that they can gather full responses from all the companies.

[00:12:21] Speaker 00:
But when our client actually gave them that, they said, we can't consider it.

[00:12:24] Speaker 00:
We won't consider it.

[00:12:26] Speaker 00:
So we gave it all.

[00:12:27] Speaker 00:
We gave it all that you could possibly give.

[00:12:30] Speaker 01:
I'm sorry.

[00:12:31] Speaker 01:
I'm not asking about your story.

[00:12:32] Speaker 01:
I'm asking a hypothetical about trying to understand in what circumstances would commerce be able to get evidence that would then justify moving away from the expected method.

[00:12:47] Speaker 01:
It's obviously contemplated right in the SAA that there will be circumstances to that effect.

[00:12:52] Speaker 01:
I'm asking you, what are the types of evidence that would justify that?

[00:12:56] Speaker 00:
Justified departing from the expected method?

[00:13:00] Speaker 00:
No.

[00:13:02] Speaker 00:
Well, and Albemarle talked about, in a review context at least, you could have dramatic changes from one time period to another.

[00:13:14] Speaker 00:
We don't really have that here because we are in the context of an investigation.

[00:13:19] Speaker 00:
So there is no prior time period.

[00:13:20] Speaker 00:
This is the one time when

[00:13:22] Speaker 00:
The law says, we're looking at your behavior.

[00:13:24] Speaker 00:
And if you are not a non-dumper, if you aren't dumping, you're going to be excluded from this case.

[00:13:32] Speaker 03:
Mr. Gibson, before your time runs out, Judge Toronto has a question.

[00:13:36] Speaker 02:
Yes, sir.

[00:13:37] Speaker 02:
This is not on the main question, the question we've been discussing.

[00:13:41] Speaker 02:
It's not even on the second fine furniture specific question about your own data.

[00:13:49] Speaker 02:
But on this point, I think you object

[00:13:52] Speaker 02:
to commerce having said there's a above-the-minimus but not otherwise specified amount.

[00:14:04] Speaker 02:
I don't understand.

[00:14:05] Speaker 02:
Maybe you can explain to me what the practical consequences of this dispute are.

[00:14:15] Speaker 02:
Why does it matter if they say 7% versus 0%

[00:14:22] Speaker 02:
or it's more than zero, but we don't know how much.

[00:14:25] Speaker 00:
But it's just an extension of the inferences that they're already making.

[00:14:29] Speaker 00:
If they're allowed to say, we don't even need to calculate a number anymore, we think you might be above de minimis, and that's the new standard.

[00:14:37] Speaker 00:
That can't be the standard.

[00:14:38] Speaker 00:
And it can't be based on what happens.

[00:14:40] Speaker 02:
I'm asking an enormously practical question.

[00:14:43] Speaker 02:
What happens differently if

[00:14:46] Speaker 02:
They say zero or something above zero, but otherwise, a different deposit at the port, a different effect on the ultimate liquidation.

[00:14:57] Speaker 00:
What?

[00:14:58] Speaker 00:
I mean, I was thinking about this.

[00:14:59] Speaker 00:
This is outside the four corners of our briefs, I will say, but every year an importer has to apply for a continuous import bond.

[00:15:07] Speaker 00:
And the continuous import bond with customs is based on your imports during the past year times the duty that would apply.

[00:15:15] Speaker 00:
So these importers, when they go to apply for a surety bond, a customs bond, what number did they tell the surety?

[00:15:23] Speaker 00:
If they tell them we have a number that is unspecified and potentially infinite, then the surety is going to demand millions of dollars of secured customs bond.

[00:15:33] Speaker 00:
That is not a point made in our briefs.

[00:15:35] Speaker 00:
The main point is that if commerce is allowed to just

[00:15:39] Speaker 00:
say, we don't have to do our job and calculate a margin, it's high, we know it's above zero and that's all that matters, then that's just giving them license to make the kinds of inferences that they've made here, which are rebutted by information on the record that they refuse to look at.

[00:15:55] Speaker 03:
Mr. James, your time has expired, but we'll give you four minutes of rebuttal.

[00:16:00] Speaker 03:
Thank you very much.

[00:16:01] Speaker 03:
Ms.

[00:16:01] Speaker 03:
Hogan?

[00:16:08] Speaker 05:
Good morning, Your Honors.

[00:16:09] Speaker 05:
May it please the court?

[00:16:11] Speaker 05:
The Congress's determination here...

[00:16:15] Speaker 05:
Trial court's judgment here should be affirmed because commerce's determination here is supported by substantial evidence and consistent with the statute that it relies upon for guidance.

[00:16:28] Speaker 05:
To quickly answer Judge Toronto's question about the practical implications, at this point there really are none.

[00:16:35] Speaker 05:
All of the cash deposit rates have been superseded by the results of subsequent administrative reviews.

[00:16:43] Speaker 05:
And that was in part one of the reasons why the trial court was affirmed what Commerce did here, that the need for a specific number was lessened because those rates had been superseded by the results of the first administrator review.

[00:17:02] Speaker 02:
Does the point you're just making apply to the entirety of the case or just what I thought of as this little piece at the back end?

[00:17:10] Speaker 02:
That is, are you suggesting that because

[00:17:14] Speaker 02:
the rates, this is all in the investigation, right?

[00:17:17] Speaker 02:
The investigation don't matter anymore.

[00:17:20] Speaker 02:
We don't need to think about whether there was any impropriety in the decision to not just use the expected method under the SAA initially?

[00:17:36] Speaker 05:
No, I'm not suggesting that

[00:17:39] Speaker 05:
the results of the investigation aren't still subject to judicial review.

[00:17:44] Speaker 05:
But just in terms of the practicality of why does it matter whether it's an unspecified above the minimus margin versus a 1%.

[00:17:53] Speaker 02:
OK, just that little issue.

[00:17:58] Speaker 05:
As this court, I want to first, I guess, address Alvar Marl because I think that's the case that the court will look at first.

[00:18:06] Speaker 05:
As this court held

[00:18:08] Speaker 05:
that in that particular case, the individually examined respondents there did account for a majority of the market during the relevant period.

[00:18:16] Speaker 05:
And this court concluded that they were representative at the very least in terms of aggregate volume.

[00:18:22] Speaker 02:
But here, Congress could be- But the court's analysis, it mentioned, it observed that in fact there, the three, I think it was, respondents had a majority of the market.

[00:18:37] Speaker 02:
But the statutory point it made was that if you look at the two alternatives Congress gives in 1677, F1, C2, for examining everybody individually, when you do either one of those, Congress is conveying the idea they're representative.

[00:19:01] Speaker 02:
Now, neither one of those depends on there being a majority.

[00:19:04] Speaker 02:
So I take it that

[00:19:06] Speaker 02:
the Albemarle statutory analysis is that if you fit under 1677 F1C2, you have the presumption that the mandatory respondents are representative of the other separate rate respondents.

[00:19:25] Speaker 02:
And you need, therefore, to have an affirmative reason of commerce to say, here's why that's not true for this particular separate rate response.

[00:19:37] Speaker 02:
So it doesn't depend on the majority rationale?

[00:19:41] Speaker 05:
It doesn't, no.

[00:19:43] Speaker 05:
But the fact that in this case, commerce didn't have those facts was a reason to depart from the expected method.

[00:19:51] Speaker 05:
So again, two of the reasons that this court in Albemarle said no, commerce really must follow the expected method in this circumstance was because there was factual reason to believe that they were in fact

[00:20:07] Speaker 05:
representative, that the mandatory were in fact representative, but also because in the context of administrative reviews there's a heightened requirement for contemporaneity and so this court said it wasn't appropriate for Congress to look backwards to select a rate to assign to the separate rate respondents because the purpose of an administrative review is to look at the dumping behavior during that time period.

[00:20:35] Speaker 05:
The court distinguished that from

[00:20:37] Speaker 05:
an investigation in which the question is much broader.

[00:20:39] Speaker 05:
The question is simply, is there dumping or is there not dumping?

[00:20:43] Speaker 05:
We're examining the pricing.

[00:20:45] Speaker 01:
The second part you're talking about, wasn't that part of the albumaral opinion talking about whether the chosen method by commerce was reasonable, not whether it was appropriate to depart from the expected method?

[00:21:01] Speaker 01:
I mean, as I understand it, there were two pieces.

[00:21:04] Speaker 01:
One was, is it okay to depart from the expected method?

[00:21:07] Speaker 01:
And two, if so, was the method that they picked using a different review period data to compare, was that reasonable?

[00:21:16] Speaker 01:
And so, as I understand it,

[00:21:21] Speaker 01:
What you're saying is the reason why we don't have to follow Albemarle, which seems to bring up a strong presumption of using the expected method, is because in Albemarle, the opinion identified the three mandatory respondents as being representing the majority of all exports, whereas here we don't have that.

[00:21:46] Speaker 01:
So is that what it boils down to?

[00:21:48] Speaker 01:
So if we disagree, I guess is what I'm really getting at, that that was really the linchpin of the presumption in Albemarle, then if we disagree with you on that, then we're bound by Albemarle.

[00:22:04] Speaker 05:
The linchpin of Albemarle and the holding of Albemarle is, I think we all agree that commerce is expect.

[00:22:14] Speaker 05:
when commerce can't follow the first part of the statute, because there are no rates that are either non-zero, non-dominant, or based on AFA, when commerce goes to the second part of the statute and uses any reasonable method, that commerce is presumed to use the reasonable, the expected method, unless one of those two exceptions apply.

[00:22:40] Speaker 05:
The appellants are correct.

[00:22:41] Speaker 05:
We're not arguing that it would not have been feasible for commerce to do so.

[00:22:44] Speaker 05:
We're arguing that on the facts of this case, commerce found a reason why it should depart from the expected method.

[00:22:52] Speaker 05:
And that's primarily based on this large percentage of exporters and producers who didn't respond and who left a gap.

[00:23:01] Speaker 02:
Just tell me why the following is wrong.

[00:23:04] Speaker 02:
Albemarle says you need a reason to conclude that the separate rate firm

[00:23:11] Speaker 02:
is different from the presumptively representative mandatory respondents.

[00:23:19] Speaker 02:
The key difference between the separate rate firms and the 110 non-responding China-wide entity firms is that one responded and the other didn't.

[00:23:34] Speaker 02:
So it seems, I guess, upside down to me to say that

[00:23:41] Speaker 02:
the ones that didn't respond, presumably didn't respond, because had they responded, they would have actually had a worrisomely high number, to imply that that inference carries over to the ones who did respond.

[00:23:58] Speaker 02:
So I'm not sure why what one would plausibly infer about the non-responders tells us why there is an unrepresentativeness within the group of responders.

[00:24:12] Speaker 02:
That doesn't apply to the, that you have a separate point about look what happened in the first administrative review, but on this primary rationale or principle of use some word like that, that one doesn't seem to me to go to the central inquiry.

[00:24:28] Speaker 02:
Why are the three unrepresentative of the separate rate respondents who did after all respond?

[00:24:39] Speaker 05:
The answer is that the

[00:24:43] Speaker 05:
110 companies that didn't respond, we just don't know.

[00:24:48] Speaker 05:
So their failure to respond did two things.

[00:24:54] Speaker 05:
And it's not necessarily that they would have been subject to a high or a punitive or an adverse rate.

[00:25:04] Speaker 05:
It's that they were assumed to not be capable of receiving either a zero or de minimis rate.

[00:25:10] Speaker 05:
That's the assumption that commerce made

[00:25:13] Speaker 05:
But their failure to respond affected the separate rate respondents insofar as it left a gap in the record about.

[00:25:25] Speaker 02:
But if under Alvaro, you actually have to have an affirmative basis for concluding that the three mandatory respondents were not representative of the however many separate rate respondents, 70-something.

[00:25:43] Speaker 02:
Why is that an affirmative basis for, say, for inferring unrepresentativeness?

[00:25:52] Speaker 02:
I'm not quite seeing that.

[00:25:56] Speaker 05:
What Commerce found, this is JA102118 of the administrative record, is that looking only at the mandatory respondents' rates provides an incomplete picture.

[00:26:06] Speaker 05:
And that at page 102123, Commerce explained that failing to take into account the experience of

[00:26:14] Speaker 05:
that to look only at the three mandatory respondents would be to fail to take into account the experience of the vast majority of the companies who were subject to the investigation.

[00:26:25] Speaker 05:
So the answer, as best as I can explain it, is that we just don't know.

[00:26:31] Speaker 05:
And that was the factual record that commerce was left with.

[00:26:37] Speaker 05:
was that it just didn't know what was going on in the large part of the market.

[00:26:42] Speaker 05:
So it was more appropriate, Commerce Found, to look at all of the potential producers and exporters as a whole in determining the economic reality of the separate rate respondents, that it was more varied than would

[00:27:05] Speaker 05:
just simply looking at the mandatory respondents suggest.

[00:27:08] Speaker 05:
Because unlike Alamaro, Commerce didn't have the comfort to know that those three mandatory respondents were, in fact, representative.

[00:27:21] Speaker 05:
And Commerce corroborated that conclusion with reference to the results of the first administrative review in which there were respondents, in fact, fine furniture, who was

[00:27:34] Speaker 05:
determined to have a positive dumping margin.

[00:27:37] Speaker 05:
And that's both relevant and permissible for two reasons.

[00:27:41] Speaker 05:
One, although this court in Albemarle and in other contexts have not approved of commerce looking backwards when the issue is contemporaneity and there's a need for specificity during a particular time period, this court said it is not correct to look backward in the context of an administrative review.

[00:28:04] Speaker 05:
But in the context of an investigation, particularly where the time period for the first administrative review starts at the date of the preliminary affirmative determination, that is, while there's still an investigation going on, there is a closer connection between the investigation and the administrative review.

[00:28:29] Speaker 05:
And we also know that the discipline of an order

[00:28:33] Speaker 02:
Can you just remind me, what is the overlap or disparity and overlap of the periods of the first administrative review and the period of investigation?

[00:28:45] Speaker 05:
The investigation period was between April and September of 2010.

[00:28:48] Speaker 05:
The preliminary affirmative determination of the investigation was issued in May 2011, and at that point cash deposits were

[00:28:59] Speaker 05:
were required to be made on subject merchandise.

[00:29:04] Speaker 05:
And then the time period for the first administrative review runs from that date, from May 26, 2011 through November 30, 2012.

[00:29:12] Speaker 05:
So there is a several months overlap between when companies are at least preliminarily subject to cash deposits while the investigation concludes after there's been a preliminary affirmative determination

[00:29:29] Speaker 02:
going through to the end of the... In the first administrative review, maybe you can clarify how this works.

[00:29:36] Speaker 02:
The positive dumping margin determined there, is that some kind of... Does it take account of the whole period so that it is at least possible that there was none during the overlap period with the investigation period, but offsetting more later?

[00:29:57] Speaker 05:
I don't, that's possible.

[00:30:00] Speaker 05:
Yes, that's possible.

[00:30:02] Speaker 05:
But as we explain, there's reason to think that if there was dumping occurring or unfair pricing behavior occurring during the first administrative review, one might expect that the imposition of cash deposits and potentially being subject to the discipline of an anti-dumping duty order would tend to affect or to dampen

[00:30:28] Speaker 02:
And is that point, I notice you didn't cite anything for that.

[00:30:32] Speaker 02:
Is that something that's empirically grounded or kind of plausible armchair economics grounded?

[00:30:38] Speaker 05:
Probably the latter.

[00:30:39] Speaker 05:
The trial court does acknowledge that point, but we weren't able to identify another case where the court has said that before.

[00:30:48] Speaker 01:
This usage of the data from the first administrative review in this case, it's merely to corroborate, right?

[00:30:58] Speaker 01:
So if hypothetically we were to disagree that the lack of response from the non-responding respondents represents substantial evidence to overcome the presumption that the separate respondents should be treated the same way as the mandatory respondents, then we wouldn't need to

[00:31:25] Speaker 01:
reached the question of whether it was appropriate for Commerce to then corroborate its findings by relying on data from a different period of time compared to the investigation period.

[00:31:39] Speaker 01:
Is that right?

[00:31:47] Speaker 05:
Presumably if the court finds that it lacks substantial evidence, then that question isn't before the court.

[00:31:52] Speaker 01:
Right, because the point is it's just being used for corroboration.

[00:31:55] Speaker 01:
It's not the actual substantial evidence that's required.

[00:31:59] Speaker 05:
Correct.

[00:32:00] Speaker 01:
OK.

[00:32:00] Speaker 01:
And then we likewise wouldn't need to reach the sole question of whether an unspecified rate that's above de minimis is appropriate or inappropriate, because we would have essentially vacated that.

[00:32:18] Speaker 05:
Right.

[00:32:19] Speaker 05:
I mean, if the court were to find that commerce was obligated to follow the expected method and that it

[00:32:25] Speaker 05:
couldn't depart from that, then I think that would resolve the question.

[00:32:32] Speaker 03:
Yes.

[00:32:32] Speaker 03:
Thank you, Ms.

[00:32:33] Speaker 03:
Hogan.

[00:32:33] Speaker 03:
Thank you, Your Honor.

[00:32:34] Speaker 03:
Mr. Grimson will give his four minutes back.

[00:32:39] Speaker 00:
Thank you, Your Honor.

[00:32:40] Speaker 00:
Judge Sharonto, I just want to make sure that on your question about the meaning of above de minimis, that we're clear about one point, which is that if our eight appellants are found to have a zero margin, they are retroactively excluded

[00:32:55] Speaker 00:
from this dumping order, ab initio, which means that all these subsequent reviews, we all have court injunctions that are protecting our imports.

[00:33:03] Speaker 00:
All these subsequent reviews will be wiped clean and our clients have deposited tens of millions of dollars of duties too much during that whole time.

[00:33:13] Speaker 00:
We're in the fifth review.

[00:33:15] Speaker 00:
We started the fifth administrative review and our clients are still in this case.

[00:33:18] Speaker 00:
So it means a lot to get at zero.

[00:33:22] Speaker 00:
to get a de minimis, which is below 2% in an investigation.

[00:33:25] Speaker 00:
It means a lot.

[00:33:26] Speaker 00:
It's the one time that you are either found to be a dumper or not.

[00:33:30] Speaker 02:
So if you've got a zero in the investigation in this, if you've got the lucky ticket to be selected, what happens retroactively from the first five administrative reviews?

[00:33:43] Speaker 02:
That's right.

[00:33:44] Speaker 00:
Yep.

[00:33:45] Speaker 00:
That's what it means.

[00:33:47] Speaker 00:
pull you back in in a subsequent... The petitioners have to file a new dumping case because we're fair traders, just like the three who are representative of the appellants here.

[00:33:57] Speaker 00:
And I would say that reliance on the first administrative review is particularly inappropriate in this case because of a couple of reasons.

[00:34:05] Speaker 00:
Number one, the court already looked, I would say, a scant at jumping around time periods in Albemarle.

[00:34:14] Speaker 00:
And the home writing case

[00:34:16] Speaker 00:
which I argued in front of Judge Toronto and Judge Chen and lost, you upheld the government wanting to stick within the period.

[00:34:22] Speaker 00:
Okay, but here they want to go outside that period.

[00:34:25] Speaker 00:
Well, what happens when you go outside that period?

[00:34:26] Speaker 00:
In the first review, Commerce came up with a new reduction from U.S.

[00:34:31] Speaker 00:
price of 8% VAT off the top.

[00:34:34] Speaker 00:
That means 8% is being added on to dumping margins in the first review that wasn't part of the calculation in the investigation.

[00:34:42] Speaker 00:
Our client got a 5.92% fine furniture.

[00:34:45] Speaker 00:
Leo, a company who Commerce did exclude in this case through the course of the litigation, got a higher margin than Fine Furniture in the preliminary result.

[00:34:54] Speaker 00:
The one moment when you had a direct side-by-side comparison between a company that Commerce said was a fair trader and Fine Furniture, our client, we had a lower dumping margin than them.

[00:35:05] Speaker 00:
We gave a full dumping margin during the investigation showing we were not dumping.

[00:35:09] Speaker 00:
All this inference about what might have happened, what might 110 companies, they're not

[00:35:15] Speaker 00:
They don't represent a large percentage of exporters.

[00:35:18] Speaker 00:
They are a number of 110.

[00:35:20] Speaker 00:
We don't know that that means that's a big number.

[00:35:23] Speaker 00:
They might have only shipped plywood, which comes under these same HTS codes and says, I'm not going to answer a question here on flooring.

[00:35:29] Speaker 00:
Commerce says that they are the vast majority.

[00:35:32] Speaker 00:
That might be based on a count of number of companies, but there's no volume information.

[00:35:37] Speaker 00:
The Albemarle case, you actually considered and rejected this.

[00:35:43] Speaker 00:
on page 1353 of Albemarle.

[00:35:45] Speaker 00:
The government argues that, quote, the possibility exists that the pricing behavior of the largest exporters selected for individual examination may not reflect the pricing behavior of smaller exporters.

[00:35:56] Speaker 00:
But there is no evidence here that the largest exporters are not representative.

[00:36:01] Speaker 00:
They have given you nothing here other than speculation.

[00:36:05] Speaker 00:
They are refusing to look at evidences right in front of them.

[00:36:09] Speaker 00:
You ask what commerce could have done, could they have asked for more?

[00:36:13] Speaker 00:
Um, information from the separate rate companies, commerce has answered that question.

[00:36:17] Speaker 00:
They've said, no, you know how they answered that?

[00:36:19] Speaker 00:
There's a co there's a company standing here, me representing them who gave every last living thing you could give in this case, including a calculation using the surrogate values that the CIT approved that the three companies got zeros.

[00:36:35] Speaker 00:
It also showed that our client during the time you care about got a zero.

[00:36:39] Speaker 00:
So I'd ask the court to remand this case, reverse it.

[00:36:42] Speaker 00:
like you did in Albemarle, and apply the expected method for the companies, the eight appellants before you today.

[00:36:49] Speaker 00:
Thank you very much.

[00:36:51] Speaker 03:
Thank you, counsel.

[00:36:52] Speaker 03:
We'll take the case under advisement.