[00:00:00] Speaker 05:
123353 Zhejiang Native Produce versus United States.

[00:00:27] Speaker 05:
I think we're good to go.

[00:00:28] Speaker 05:
Did I mispronounce the name of your client?

[00:00:33] Speaker 00:
Close enough, Your Honor.

[00:00:34] Speaker 00:
Good morning.

[00:00:35] Speaker 00:
Jordan Kahn with Grunfeld Desiderio representing the appellant Zhejiang native.

[00:00:41] Speaker 00:
Commerce in the first administrative review of the anti-dumping duty order on honey from China made internally inconsistent

[00:00:49] Speaker 00:
results-oriented decisions that were unsupported by substantial evidence.

[00:00:54] Speaker 05:
Before you get into that, can I just ask you a logistical neutral question, which is we're talking about something that happened in 2001.

[00:01:04] Speaker 05:
Why are we here in 2018 dealing with this?

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Is this a continuous issue that even though it was dated 2000, 2001, continues?

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Or is this the one-off?

[00:01:17] Speaker 05:
that we're just here 17 years later dealing with?

[00:01:20] Speaker 00:
We happen to be here 17 years later, Your Honor.

[00:01:23] Speaker 00:
The honey has long been consumed.

[00:01:25] Speaker 00:
However, the duties have not yet been paid because it's our position that the duties were artificially inflated.

[00:01:31] Speaker 05:
So what's happened in the 17 years in the interim?

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Have there been further disagreements or disputes?

[00:01:37] Speaker 05:
Have you not been in court in this?

[00:01:39] Speaker 05:
Or what's been going on for 17 years?

[00:01:41] Speaker 00:
Well, the main thing that's happened, Your Honor, is litigation in front of this court considering the applicable time period.

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Now, the first period of review, which is subject to litigation here, is unusual as compared to the subsequent reviews that are always a year.

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The first review size can be much larger or smaller than a year, depending on certain circumstances.

[00:02:03] Speaker 05:
So is what we decide here with respect to this discrete 17-year-old process of review have impact

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other stuff that's happened at the interim, or is this just a discrete issue?

[00:02:16] Speaker 00:
Well, there are some continuing themes here, but we're here because we don't want to have to pay the anti-dumping duties that were assessed on these entries that came in between 01 and 02.

[00:02:26] Speaker 00:
We think that they were unreasonably calculated.

[00:02:31] Speaker 04:
But some of the reasons for that is that you said that it was inappropriate to rely on the 2000 article instead of the 2001 article.

[00:02:41] Speaker 04:
But didn't we decide in Wuhan B, or didn't the court decide in Wuhan B that, in fact, the use of the 2000 article was reasonable?

[00:02:51] Speaker 00:
Well, that was the court below.

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And we have a de novo standard here.

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We respectfully disagree with Wuhan.

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We believe that there was plenty of reasons to pick the 2001 article over the 2000.

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First of all, it's undisputed, which is more contemporaneous, which is a critical commerce criterion

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for selecting surrogate values.

[00:03:12] Speaker 04:
So what's our standard of review with respect to the question of what constitutes the best available information?

[00:03:19] Speaker 00:
It's substantial evidence.

[00:03:21] Speaker 00:
Not de novo.

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Not de novo.

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

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It's whether or not commerce's decision.

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Here, the critical finding, why commerce used the older article that was not only less contemporaneous, but it was less representative, because the 2000 article used honey prices from a single Indian city.

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whereas the 2001 used honey prices from the largest Indian state.

[00:03:45] Speaker 05:
I know, but there were drawbacks.

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I mean, this is really a very fact-based determination.

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And you're right.

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You were closer in time, but there were deficiencies identified in the study that you were promoting.

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So under a substantial evidence review, how do we get to where you want us to go?

[00:04:04] Speaker 00:
We just do not see how commerce or the court could conclude that the later article was unreliable.

[00:04:13] Speaker 04:
But they made specific findings of fact.

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They said that it appeared to identify imports from four countries as suppressing Indian honey prices, but that Indian government import statistics did not show honey imports from those countries during the relevant period.

[00:04:29] Speaker 00:
I would draw your honor's attention.

[00:04:31] Speaker 04:
Are you saying that was a clearly erroneous

[00:04:33] Speaker 00:
Yes, that was clearly erroneous, because if you look at the wording of the 01 article on APPX 63, they're talking about imports coming in at prices between 20 and 25 rupees.

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Period.

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It has affected beekeepers in a big way.

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Period.

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The production cost of honey in India is near 23 rupees per kilogram, and procurement price is only 24 rupees.

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There's no doubt that that 24 rupees is India-wide.

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So yes, it may have been impacted by the import prices coming in on the lower end of that range.

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But there is, from our perspective, it is crystal clear that that 24 rupees price was for India.

[00:05:14] Speaker 03:
But wasn't Commerce saying that this whole part of this article is not as reliable because it's saying that there's imports when in fact the data shows that there was no imports?

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So they're questioning the whole veracity of this entire section of the article.

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Isn't that correct?

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That's how I understand Congress is saying.

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But we just, you know, the fact, whether or not those... You're saying that we as an appellate court should disregard that finding of fact because you can separate out the thing that was untrue from the thing that is you contend here is true?

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Well, for two reasons.

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The first is yes, Your Honor.

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The fact that it's clear to us, and we think any reasonable mind,

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that the procurement price of rupees 24 is an Indian-wide value.

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It has nothing to do with the other import prices, whether or not those imports could be substantiated.

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But this is what sets this case apart, is the amended record that we obtained through FOIA.

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This is an extraordinary occurrence, where commerce supplemented the record.

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It included interviews that they had with the author of this publication.

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And they said that those interviews showed that the author's responses had many internal inconsistencies.

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See, here's where there's just no reasonable mind could find it.

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This is what the author told Commerce.

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The raw honey price of 24 rupees was from a raw honey market in Punjab.

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Had nothing to do with imports.

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And in fact,

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If Commerce was concerned about that price, they could and should have asked the author when they spoke directly to him.

[00:06:54] Speaker 04:
So you're saying that Commerce should have said, all right, well, let me figure out which statements in this article might be right, even though it's clear that some of them are not, rather than just say this article does not give us the best available information, because there are definitely some things that are wrong.

[00:07:13] Speaker 00:
If Commerce is going to take the time and effort

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to go behind the surrogate data, which they seldom do, and interview the author.

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It's on them to clarify any concerns that they might have.

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Here they did the opposite.

[00:07:26] Speaker 00:
What they did was they didn't tell us, you know, had they put this on the record, we could have commented on it, we could have rebutted it.

[00:07:32] Speaker 00:
They concealed it until we went through the FOIA process, at which point they reach into the article and they say, well, the author said international competition, so therefore it's all the more unreliable.

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We find that that is the no rational fact finder could make that.

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What we see here is an administrative bias to stay the course.

[00:07:53] Speaker 00:
That term is actually in the administrative record and give Zhejiang artificially high administrative.

[00:08:01] Speaker 04:
But the CIT did a remand in order to allow further development of this record, right?

[00:08:09] Speaker 00:
This was a voluntary.

[00:08:10] Speaker 04:
So you had an opportunity to make all of these arguments, right?

[00:08:13] Speaker 00:
And we did make those arguments.

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We feel that the CIT erred by in essence rubber stamping this decision and not giving this amended record the credence that it deserved.

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It is compelling evidence that shows that commerce disregarded its own memorialized record keeping.

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There's something called the presumption of regularity.

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Which in this case means that when commerce interviewed the author and wrote down the 24 rupees price as Indian, that's presumed to be valid unless somebody shows contrary evidence.

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That information was concealed.

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And when it's put on the record, we're faulted with not having done enough.

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From our perspective, this is a heads we win, tails you lose approach.

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And it contradicts the presumption of regularity.

[00:09:04] Speaker 00:
Similarly, turning from the

[00:09:06] Speaker 00:
raw honey price to the inflator, where we contend commerce added insult to injury by taking that raw honey value and improperly inflating it using a convoluted tripartite methodology.

[00:09:19] Speaker 00:
There was handwritten prices from two small bee farms that were inflated well above, that were used to inflate the price well above the WPI for six months.

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Now, it's important to note that commerce had rejected these prices as a surrogate value.

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finding that these handwritten beef farm prices were not public and they were too limited.

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But yet, commerce turns around and uses these beef farm prices to inflate the raw honey surrogate value well above those rejected prices.

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At a minimum, commerce should have capped its inflator for the end of the period using information from USDA.

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The FOIA record revealed a USDA official in India getting prices from Indian beekeepers.

[00:10:05] Speaker 00:
But Commerce unreasonably discredited that information.

[00:10:08] Speaker 00:
They said, oh, it's not public.

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It's not substantiated.

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But there's no basis to question the USDA information.

[00:10:15] Speaker 04:
Basically, Commerce said, you've got two different articles, neither of which is perfect.

[00:10:22] Speaker 04:
One represents data from the largest honey producer, either the second or the third.

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And then the 2001 article, they said,

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a number of flaws.

[00:10:36] Speaker 04:
And they said, you know, choosing between two imperfect choices, we think that the 2000 is more representative.

[00:10:43] Speaker 04:
And because it was publicly available, that makes it more reliable.

[00:10:47] Speaker 00:
Well, both articles were equally publicly available.

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It was the same tribune of India.

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So that factor is an equipoise.

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Contemporaneous criterion goes our way, clearly.

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So the specificity factor is an equipoise.

[00:11:02] Speaker 00:
It's all about the representativeness factor goes our way.

[00:11:06] Speaker 00:
It's all about this reliability finding.

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Where Commerce Herd was saying from a binary perspective, they're both not contemporaneous.

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They're both not countrywide.

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What they didn't do was measure the gradients, where ours was much more contemporaneous and much more representative.

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And we also feel that that unreliability finding was erroneous.

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And just to talk a minute more about this amended record, because again, we have a pattern.

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They did it with the raw honey prices.

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Now with the inflator, the information comes to light that's kept by government officials, in the case of the inflator, a USDA official in India.

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And commerce is saying, well, no, we're not going to use that information.

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You haven't proved its validity to us.

[00:11:55] Speaker 00:
Well, wait a second.

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conceal information, and then after we get it on the record, even though it's beneficial to us, you're going to fault us for not having proven its validity?

[00:12:06] Speaker 00:
We're asking for the inflator that this USDA information be used as the same limited purpose as the beef farm data for the inflator.

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So we feel that our position is that for both honey and the inflator, commerce is

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disavowing its own information and that from a sister agency in its haste to maximize the dumping margin.

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And finally, if I may turn to financial ratios, this is the third issue.

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Commerce unreasonably declined to average consecutive financial statements, choosing the earlier only because it covered more than 10 months of the period, while the newer one covered just eight.

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Such rigid adherence to the contemporaneity criterion

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cannot be reconciled with commerce's flexible approach for raw honey.

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And it ignores, this is very important, it ignores the dramatic shift in profits for that one company between fiscal years.

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Profits dipped nearly 30% between the fiscal periods.

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So averaging these two financial statements would capture the most complete financial experience of the surrogate industry.

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And that's a quote when commerce did it back in 2005.

[00:13:19] Speaker 00:
Again,

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The averaging of these financial statements would also have included the months when the beef farm prices peaked.

[00:13:29] Speaker 00:
This is a time period that commerce found critical for the inflator but ignores altogether for the ratios.

[00:13:36] Speaker 00:
So again, the first administrative review is oversized.

[00:13:40] Speaker 00:
Here it's more than 18 months.

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So that's all the more reason why commerce can and should average financial statements when calculating ratios.

[00:13:49] Speaker 04:
But commerce explained that it's not their practice and that when assessing non-market economies that their methodology is to pick the most contemporaneous data, right?

[00:14:03] Speaker 00:
It may be when there's not compelling evidence.

[00:14:07] Speaker 00:
But here, because of the beef farm prices, because of the profits,

[00:14:12] Speaker 00:
There is compelling evidence to use to average statements.

[00:14:16] Speaker 00:
And in fact, they do average statements on occasion.

[00:14:19] Speaker 00:
They did during the pendency of the appeal.

[00:14:21] Speaker 00:
We finaled the supplemental authority in March when commerce finalized such averaging.

[00:14:26] Speaker 05:
Thank you.

[00:14:42] Speaker 02:
Your Honor, I'm actually joined by the defendant intervener.

[00:14:45] Speaker 02:
And I would like to reserve three minutes for him, if it's possible.

[00:14:48] Speaker 05:
Yes.

[00:14:48] Speaker 05:
So we'll run your clock at 12.

[00:14:49] Speaker 05:
Can we start it at 12?

[00:14:51] Speaker 05:
And then it's up to you to abide by the clock.

[00:14:53] Speaker 02:
Thank you.

[00:14:53] Speaker 02:
Good morning, and may it please the court.

[00:14:56] Speaker 02:
To start with, one of the first questions was what happened with this case and why it's so old.

[00:15:02] Speaker 02:
And the simple answer is that this case was stayed in the trial court from 2006 through 2014, while this court was actually

[00:15:12] Speaker 02:
taking on another case.

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And so that's why this is so old, just because it was stayed in the trial court.

[00:15:17] Speaker 02:
And then once there was a decision from this court about a finding of no critical circumstances, then that's when it came back to the trial court and the period of review was shortened.

[00:15:27] Speaker 02:
And so then it was, Commerce did ask for a voluntary remand to consider the additional documents in the record.

[00:15:33] Speaker 02:
And so just to explain, it was stayed for a period of years.

[00:15:36] Speaker 04:
So Commerce asked for the remand, so there was no

[00:15:41] Speaker 04:
hiding of this additional evidence?

[00:15:44] Speaker 02:
That's correct.

[00:15:45] Speaker 02:
Commerce did ask for a voluntary remand to consider those additional FOIA documents that Commerce had placed on the record.

[00:15:50] Speaker 02:
And then in addition, I would clarify that those FOIA documents or the amended documents in the record, which can be found starting at pages 512 of the appendix, those were actually related to a different administrative proceeding and were notes taken in an entirely different administrative proceeding.

[00:16:11] Speaker 02:
As this court probably is familiar with, each administrative review is separate when it comes to each period of time.

[00:16:18] Speaker 03:
And there is, in fact, no continuing... So the notes from the interview were from a different proceeding?

[00:16:23] Speaker 02:
It was from a different period of time, yes.

[00:16:25] Speaker 02:
And then again, that was going on 15 years ago as to when the analysts spoke with both authors of both the 2000 and 2001 articles.

[00:16:37] Speaker 02:
As opposed to hiding any documents, Commerce did place the documents on the record, did ask for voluntary remand, and did consider those documents when it undertook that remand proceeding.

[00:16:48] Speaker 04:
Do you agree with your friend on the other side that in that interview that the author said there was no impact from any other countries or international

[00:17:01] Speaker 04:
prices and that it was all based on Punjab data?

[00:17:05] Speaker 02:
I disagree.

[00:17:05] Speaker 02:
And InCommerce explained why, again, that 2001 article was still inconsistent despite talking with the author.

[00:17:12] Speaker 02:
And I would note that what seems to be missed here is that 15 plus years ago when these analysts spoke with the authors, the point of that was to figure out the source of the honey in both articles.

[00:17:24] Speaker 02:
And InCommerce, in fact,

[00:17:26] Speaker 02:
determined that, again, both the 2000 and 2001 articles referred to regional sources of honey, as opposed to countrywide after examining these new documents.

[00:17:36] Speaker 02:
And to go to your question, Your Honor.

[00:17:38] Speaker 03:
Was the purpose at all to confirm the information that the author provided?

[00:17:43] Speaker 02:
To confirm the source of the honey.

[00:17:44] Speaker 03:
Not confirm the information was accurate?

[00:17:47] Speaker 02:
It's my understanding not to confirm specific details of any particular article tied back to each article.

[00:17:56] Speaker 02:
But why I would say is that although it says 24 rupees per kilogram, and this is at page 524 of the record, what the author also said was that the price of honey is highly elastic depending upon supply, which is affected by factors such as the weather and international competition.

[00:18:13] Speaker 02:
And moreover, if you turn to page 525, the analyst also noted that when he spoke to the author,

[00:18:21] Speaker 02:
The author had said that he believed that 30% of the entire honey production was in Punjab, but, I'll quote here, that is mathematically confusing because Dhalawal also mentioned that he obtained information from honey farmers who, according to their rough estimates, believe that the total honey production is more than 8,000 tons.

[00:18:38] Speaker 02:
And so, again, despite looking at the amended record, commerce still determined that the 2001 article was internally inconsistent as to what the exact price of

[00:18:51] Speaker 02:
raw honey produced in India is, and so therefore determined that the 2000 article was the best available source of information to value raw honey.

[00:19:00] Speaker 04:
Can you explain the inflation methodology?

[00:19:04] Speaker 04:
It's a little confusing.

[00:19:06] Speaker 02:
It is a little confusing.

[00:19:07] Speaker 02:
And so with the inflation methodology, and Commerce explained that at pages 691 and 92 of the record, but what Commerce first had was the period of review

[00:19:18] Speaker 02:
upon remand was roughly May 2001 through November 2002.

[00:19:31] Speaker 02:
And so what Commerce First did was, and all of my friends said that the 2001 article is more contemporaneous.

[00:19:39] Speaker 02:
In fact, they're both not contemporaneous because they both are outside the period of review.

[00:19:43] Speaker 02:
So regardless, an inflator would have had to be applied to that 2001 article as well.

[00:19:48] Speaker 02:
But so just to break it down, there were three different periods that commerce looked at with this inflation methodology.

[00:19:53] Speaker 02:
And during that first period of time, from up to December 2001, commerce used the price that was quoted in the 2001 article and just inflated it according to the Indian Wholesale Price Index.

[00:20:06] Speaker 02:
But then we get into the issue of the beef farms, because from December 2001 through May 2002, the raw honey prices

[00:20:15] Speaker 02:
It was almost like hyperinflation.

[00:20:17] Speaker 02:
The raw honey prices increased in excess of the wholesale price index.

[00:20:21] Speaker 02:
And so Commerce looked at those prices from the Indian bee farms to basically apply an extra hyperinflation on top of the Indian wholesale price index.

[00:20:33] Speaker 02:
Then we get to the third period, which is June through November 2000, to where Commerce found that the price of honey was in line again with regular inflation.

[00:20:43] Speaker 02:
And so just applied inflation on top of the price quote of honey.

[00:20:50] Speaker 02:
And then when you had all three periods, basically took all three and divided by three and came up with one number.

[00:20:57] Speaker 02:
And so it does seem somewhat complicated, but when it comes to at least the bee farms, commerce used the bee farm data to account for the fact that there was that period of hyperinflation with the price of raw honey.

[00:21:10] Speaker 02:
And again, I would note that

[00:21:12] Speaker 02:
What is not challenged by Zhejiang is that actual inflation methodology.

[00:21:18] Speaker 02:
What, again, was mentioned was that the Singh email or the conversation with the USDA individual in India that they should have used it capped that inflator.

[00:21:30] Speaker 02:
But Commerce explained why it didn't do that, because as it said, and this is at page 692 of the record, that email can be found at 533, was that

[00:21:40] Speaker 02:
the prices he gave commerce, they'd asked for him to substantiate and corroborate those prices.

[00:21:45] Speaker 02:
And he wasn't able to do that.

[00:21:47] Speaker 02:
And so commerce decided that, again, when it comes to determining surrogate value, it's looking for the best available source of information.

[00:21:55] Speaker 02:
And so used those B-farm price quotes for the very limited purpose of just the inflation methodology.

[00:22:03] Speaker 02:
And if there are no further questions, we respectfully request that.

[00:22:06] Speaker 04:
What about the averaging issue?

[00:22:07] Speaker 04:
The average, oh, when it comes to the- Now, why doesn't Commerce average when we're talking about a data that has at least overlapping periods?

[00:22:17] Speaker 02:
Well, Commerce, and again, this is substantial evidence.

[00:22:22] Speaker 02:
Commerce explained that in this instance, it determined that the best available source of information was the 2001 through 2002 financial statements, rather than because that covered 10 months of the period of review versus the other covered eight.

[00:22:37] Speaker 02:
And it also explains, and this is at pages 702 of the record, that averaging, and I'll just quote here, that commerce's practice is not to average financial statements for the same company when calculating surrogate values for financial ratios, because that actually results in a less accurate representation of the data.

[00:23:00] Speaker 02:
And so commerce explained why it chose not to average the financial statements, and then again,

[00:23:07] Speaker 02:
In addition, although it was mentioned that there was a dramatic shift in profit with that later financial statement, Commerce said, again at 702 of the record, that it would improperly weight the surrogate financial ratios according to a single input, and that's raw honey, and not the surrogate country's experience as a whole.

[00:23:28] Speaker 02:
Because the point is not just to look at honey with these financial statements.

[00:23:31] Speaker 02:
You're using this to find the selling, general, and administrative expenses, so the overhead.

[00:23:35] Speaker 02:
And that's why Commerce determined again that, based on the record before it, that the best available source of information was the 2001 financial statement.

[00:23:46] Speaker 02:
Thank you.

[00:23:59] Speaker 01:
Good morning.

[00:24:01] Speaker 01:
Michael Corsi for the

[00:24:04] Speaker 01:
defendant intervenors below, Sue Honey Cooperative and the American Honey Producers Association.

[00:24:10] Speaker 01:
I don't have much to add to what my friend said here.

[00:24:15] Speaker 01:
I did want to point out that the CIT Judge Eaton below examined each of the questions you've been asked here in great detail and provides a very good index of answers to all

[00:24:33] Speaker 01:
of these questions and explanations.

[00:24:37] Speaker 01:
One question that you had is standard of review.

[00:24:41] Speaker 01:
The standard of review is the same here as it was before the Court of International Trade.

[00:24:48] Speaker 01:
Is it based on law?

[00:24:49] Speaker 01:
And is it based on substantial evidence?

[00:24:51] Speaker 01:
However, there are qualifiers to that which this Court has recognized often.

[00:24:58] Speaker 01:
And one is that when it comes to surrogate values,

[00:25:02] Speaker 01:
Commerce has given broad discretion to choose among various surrogate values.

[00:25:11] Speaker 01:
Just on the surrogate value for honey, I would mention there are four factors to keep in mind.

[00:25:21] Speaker 01:
Is it publicly available?

[00:25:22] Speaker 01:
Is the data publicly available?

[00:25:25] Speaker 01:
Is it product-specific?

[00:25:26] Speaker 01:
And here, raw honey, both sides.

[00:25:29] Speaker 01:
Yes to both those questions or both articles.

[00:25:32] Speaker 01:
Broad market average?

[00:25:34] Speaker 01:
No to both articles.

[00:25:35] Speaker 01:
Broad market average means India-wide.

[00:25:38] Speaker 01:
Here, commerce found 101 was Madras-wide, very big region.

[00:25:44] Speaker 01:
I'm sorry, the March 2000 article.

[00:25:49] Speaker 01:
And the March 2001 was broad with Punjab, another big country.

[00:25:53] Speaker 01:
But neither one of them were country-wide, contemporaneous, as my friend said.

[00:25:58] Speaker 01:
Neither was the March 2001 article was

[00:26:02] Speaker 01:
less non-contemporaneous, but neither one was in the article.

[00:26:07] Speaker 01:
The real question here is the fifth factor, reliability.

[00:26:11] Speaker 01:
And I can't avoid the word, but reliability trumps really everything else.

[00:26:19] Speaker 01:
You're exactly right on the analysis that commerce looked at, especially in the documents that were added after the original final results from the Wuhan

[00:26:29] Speaker 01:
Congress went back to find out what exactly did go on there.

[00:26:33] Speaker 01:
And what they found is that the O-1 article was unreliable for two reasons.

[00:26:40] Speaker 01:
One, it said the domestic market price was being affected by imports from four countries.

[00:26:50] Speaker 01:
Commerce found, originally, and found after looking at these additional records and calling, after calling into India,

[00:26:59] Speaker 01:
to the writers that it still could not be explained because Indian import stats showed there were no imports from these countries.

[00:27:10] Speaker 01:
The second point is important.

[00:27:13] Speaker 01:
The discussion with the author of the March 01 article had that author saying, believe me, this is data.

[00:27:22] Speaker 01:
These are prices from the Punjab market.

[00:27:25] Speaker 01:
And in fact, there was nothing to back that up.

[00:27:30] Speaker 01:
In other words, what Congress looks for in these things is reliability.

[00:27:34] Speaker 01:
Who did you talk to?

[00:27:36] Speaker 01:
Where exactly was this?

[00:27:39] Speaker 01:
What did the cover of that sort of thing?

[00:27:42] Speaker 01:
Congress found it just was unreliable, and given all the problems there, it went with the March 03.

[00:27:52] Speaker 01:
On the issue of the inflator,

[00:27:59] Speaker 01:
It's important to keep in mind what's not an issue here.

[00:28:03] Speaker 01:
Commerce's practice is basically surrogate value prices before the period of review.

[00:28:10] Speaker 01:
You typically apply the wholesale price index for the country as a whole to that price over the period to get the regular inflation.

[00:28:23] Speaker 01:
The friend for Zhejiang doesn't challenge that.

[00:28:28] Speaker 01:
The second thing is that if the record shows that there is a difference for the commodity at issue, Commerce will use that data and apply a commodity-specific inflator for the period.

[00:28:50] Speaker 01:
Again, Jijing doesn't object to that or challenge that.

[00:28:54] Speaker 01:
What it objects to is the fact that prices

[00:28:59] Speaker 01:
for this six-month period right in the middle from this beef farm were used when those same prices were rejected by commerce for the surrogate value for honey.

[00:29:09] Speaker 01:
Commerce had a reason for doing that.

[00:29:11] Speaker 01:
The point is that this is an apples and oranges discussion.

[00:29:16] Speaker 01:
Separate criteria for surrogate value, separate criteria for the range of, or for the commodity-specific

[00:29:28] Speaker 01:
inflator.

[00:29:29] Speaker 01:
And finally, on the last point, I just want to remind the court that we didn't argue the administrative, the party failed to raise the issue below.

[00:29:45] Speaker 01:
The government did.

[00:29:46] Speaker 01:
What we did as innovators is we went in and looked at the question of whether it was Congress's practice to not stack

[00:29:58] Speaker 01:
review reports from the same company on top of each other.

[00:30:05] Speaker 01:
And you should look at that.

[00:30:06] Speaker 01:
Commerce's theory there is that what happens is you get something that's too long.

[00:30:12] Speaker 01:
It doesn't fit the period.

[00:30:15] Speaker 01:
It may fit the next period as it goes.

[00:30:17] Speaker 01:
But you can bring data that is outside the period in a manner that hurts their analysis.

[00:30:25] Speaker 01:
Thank you.

[00:30:32] Speaker 00:
Proceed.

[00:30:33] Speaker 00:
Just a few rebuttal points, Your Honors.

[00:30:36] Speaker 00:
First, about this amended record, the department told the CIT that these documents were inadvertently omitted.

[00:30:43] Speaker 00:
This is APPX 512.

[00:30:46] Speaker 00:
It's strange credibility to accept that this was just an oversight.

[00:30:49] Speaker 00:
We would never have seen these documents if we didn't move through FOIA.

[00:30:53] Speaker 00:
And it's important to note that Congress is only asking questions that helped bolster their decision making.

[00:30:59] Speaker 00:
If they had concerns about the reliability of the raw honey value,

[00:31:02] Speaker 00:
which we don't see it from reading the record, but if they did, it was incumbent upon them to ask the authors when it spoke directly to them.

[00:31:11] Speaker 00:
Next on the inflator methodology, I agree, Your Honor, it is entirely convoluted, but that's only because commerce makes it so.

[00:31:18] Speaker 00:
Our primary argument is just a straight WPI across the board.

[00:31:23] Speaker 00:
We bring in, we have a capping argument that's sort of a backup argument, but the main one is just apply the WPI.

[00:31:31] Speaker 00:
As counsel for petitioners just said, commerce does, in certain instances, use a commodity-specific inflator.

[00:31:37] Speaker 00:
But here, the record does not support doing that.

[00:31:40] Speaker 04:
Are you saying that commerce is positioned that there was an unusual period of time and that there was actually hyperinflation, that that's just not true?

[00:31:50] Speaker 00:
It's unsupported, because the instances that they keep citing, this garlic case,

[00:31:54] Speaker 00:
that the government of India had a garlic-specific inflator that they used here.

[00:31:58] Speaker 00:
These are handwritten prices from two small bee farms that commerce has discredited and said these are not usable for surrogates.

[00:32:07] Speaker 00:
Yet they turn around and use it to increase the raw honey value beyond had those surrogates been used.

[00:32:13] Speaker 00:
So yes, Your Honor, we disagree that it was proper to use those handwritten notes as a basis for hyperinflation.

[00:32:23] Speaker 00:
My last rebuttal point is talking about the record as a whole, that the government and the petitioner, as did the court below, they take each commerce decision and they look at it in a vacuum.

[00:32:35] Speaker 00:
But I urge you to look at it as the record as a whole, and you'll see these internally inconsistent agency actions.

[00:32:42] Speaker 00:
The contemporaneity criterion is flexible for honey, but rigid for financials.

[00:32:47] Speaker 00:
The beef farm prices are critical for the inflator, but ignored for financials.

[00:32:51] Speaker 00:
The SB criteria are employed selectively to inflate using prices from the beef farms, but not from the USDA.

[00:32:59] Speaker 00:
The unifying theme here is agency action to maximize our dumping margin.

[00:33:04] Speaker 00:
What is the value of the duty that's at issue that hasn't been paid?

[00:33:08] Speaker 00:
Well, the duty rate is 67%, but the value is proprietary.

[00:33:13] Speaker 00:
I'm unable to share that in a public setting.

[00:33:16] Speaker 00:
Thank you.

[00:33:17] Speaker 00:
You're welcome, Your Honor.

[00:33:18] Speaker 00:
Thank you.

[00:33:18] Speaker 00:
Thank both sides, and the case is submitted.