[00:00:00] Speaker 03:
The next case is Lin Yi, Schengen, import and export at AL versus the United States, 2024, 1258, and 59.

[00:00:08] Speaker 03:
Ms.

[00:00:14] Speaker 03:
Baig, when you are ready.

[00:00:16] Speaker 00:
May it please the court.

[00:00:17] Speaker 00:
The trial court usurped Commerce's authority in multiple respects.

[00:00:21] Speaker 00:
First, not only did it force commerce to place untimely submitted documents on the record and condone arguments and allegations that were untimely raised, it then forced commerce to construe those documents as complete and accurate, depriving commerce of its right to probe their reliability.

[00:00:39] Speaker 00:
I think the SR Court put it best

[00:00:41] Speaker 00:
when it said that the trial court's order usurps agency power, undermines commerce's ability to administer the statute entrusted to it, contradicts important principles of finality, and discourages compliance.

[00:00:54] Speaker 03:
Ms.

[00:00:54] Speaker 03:
Bae, a procedural question for you.

[00:00:57] Speaker 03:
As you know, we look through CIT decisions, although we give them great respect.

[00:01:02] Speaker 03:
and review the agency.

[00:01:05] Speaker 03:
Are we reviewing the agency here as it finally came out or as we knew that it wanted to come out?

[00:01:16] Speaker 03:
Because it was coerced, right?

[00:01:19] Speaker 00:
I think there's like a few different ways you can look at it.

[00:01:22] Speaker 00:
First, we do maintain that commerce's original determination was lawful and supported by substantial evidence.

[00:01:29] Speaker 00:
But it is true that commerce undertook its first remand, not under protest, where it further explained its decision and supported that with explanations and substantial evidence.

[00:01:39] Speaker 00:
So I'm not sure if I'm understanding your question correctly, but I think that

[00:01:43] Speaker 00:
You can either review commerce's original decision or at the very least we would say that the court's second remand opinion is the one that should be reversed.

[00:01:52] Speaker 00:
because that's the one where it ordered Commerce to reopen the record and put documents on it.

[00:01:58] Speaker 00:
And not only that, committed the even more egregious error of deeming them complete and accurate and depriving Commerce of the ability, which is, you know, inherent within agency power, to probe the reliability of those documents and assess them for accuracy and all of that.

[00:02:15] Speaker 00:
And so I think, again, there's a couple different ways that you could look at it.

[00:02:21] Speaker 02:
We talked about Commerce having the authority to balance finality versus completeness at the time of verification.

[00:02:29] Speaker 02:
Do you see those factors playing into Commerce's response to the first remand decision?

[00:02:36] Speaker 02:
Is there additional factors, like for example, deterrence in any way?

[00:02:43] Speaker 00:
Yes, I think deterrence is certainly a factor.

[00:02:45] Speaker 00:
And when you take good luck, India and SR in conjunction, I think it's really important, SR's statement about discouraging compliance.

[00:02:54] Speaker 00:
When you do what the trial court did and allow Chang and to submit those documents so late, and that's even aside from the whole deeming it complete and accurate, you discourage parties from being forthcoming and building a complete record in the pre-preliminary stage of the proceeding, which is where it should be doing this type of thing.

[00:03:13] Speaker 00:
And again, I think this Court has acknowledged that verification is a point of no return for Commerce and the parties and Commerce's discretion is at its broadest during verification as to what it can accept and what it doesn't have to accept.

[00:03:27] Speaker 00:
And here, Commerce saw the conversion formula, decided it wanted to accept that and then declined to accept the additional pages.

[00:03:37] Speaker 00:
And again, I think it's important to note here that this is compounded by the error of deeming

[00:03:42] Speaker 00:
the documents complete and accurate because Commerce stated multiple times in its first and second remand redeterminations that the reason it ended up finding how it did on its second remand is because the court's decision did not allow it any room to find otherwise.

[00:04:01] Speaker 04:
Do we actually have to decide this documents

[00:04:07] Speaker 04:
issue or that is do we know from one of the remands, there's a lot of remands here, so it's hard for me to keep track, but do we know that commerce, even if they were required to treat the full document as complete and accurate and a national standard, that they still would have, if not compelled otherwise, have come to the conclusion that Schengen's rate should be that higher rate?

[00:04:32] Speaker 00:
I think that this is where the distinction between the court improperly ordering Commerce to put the documents on the record and then also ordering Commerce to deem it complete and accurate comes into play.

[00:04:44] Speaker 00:
Commerce stated in its, I think, second remand decision that

[00:04:49] Speaker 00:
it's not clear how this new information, even assuming it's the Chinese national standard, significantly alters the record of the investigation.

[00:04:57] Speaker 00:
However, because the CIT held that the Chinese national standard is complete and accurate, that commerce felt that it must treat the log volumes calculated by Chang'an as accurate and couldn't question, for example, the age of the standard or the absence of any record evidence indicating whether it's still in use or been revised or anything like that.

[00:05:19] Speaker 00:
I think that the court, you can almost treat them as two separate issues, but certainly combined they constitute reversible errors.

[00:05:27] Speaker 00:
So we think that the court shouldn't have ordered Commerce to put the documents on the record in the first place.

[00:05:32] Speaker 00:
And even if it did, it certainly erred in deeming them complete and accurate, particularly without any explanation as to why it deemed them complete and accurate.

[00:05:42] Speaker 04:
That's helpful.

[00:05:43] Speaker 04:
Do you argue, I think I got this from your brief, that in the alternative,

[00:05:48] Speaker 04:
If we affirm what the CIT did with respect to the document that we nonetheless could and from your view still should reverse the finding that commerce erred by using the intermediate production

[00:06:06] Speaker 04:
measurement method?

[00:06:07] Speaker 00:
Yes, we certainly think that's the case.

[00:06:09] Speaker 00:
Even if the court properly ordered Commerce to reopen the record and place the documents on it, it certainly committed reversible error in deeming them complete and accurate.

[00:06:18] Speaker 00:
And then it also committed reversible error in finding that Commerce

[00:06:23] Speaker 00:
was not allowed to seek corroboration of the log consumption volumes, particularly in light of the inherently imprecise way of calculating log volumes, and particularly in light of the fact that Commerce, until verification, thought that Linyi Chang'en was representing that it had invoices from suppliers and only found out it

[00:06:45] Speaker 00:
verification that it didn't.

[00:06:47] Speaker 00:
And not only that, Chang'an has acknowledged that it actually does have corroboration from its suppliers in the form of delivery sheets, and yet it failed to put that information on the record during the fat gathering stage of the proceeding.

[00:07:01] Speaker 00:
And I think that's something we've touched on in our briefs, but I think it needs to be emphasized more, which is that all of this could have been avoided had Chang'an

[00:07:09] Speaker 00:
put the delivery sheets on the record in a timely fashion, and put the conversion table and formula on the record in a timely fashion.

[00:07:16] Speaker 00:
It did neither of those things, and Commerce only found that out at verification, which led to where we are today.

[00:07:22] Speaker 02:
I have another question going back to the policies and deterrence versus ideas of finality and all this different stuff.

[00:07:32] Speaker 02:
What do you think, I read the Court of International Trade's opinion as saying that, you know what, if you're going to consider two pages, you should consider all 12 pages of this document, right?

[00:07:46] Speaker 02:
But what is the, what do you think is the policy behind giving commerce the discretion to say, no, we're only going to consider these two?

[00:07:55] Speaker 00:
Well, I think that, again, commerce at verification has a very, very broad amount of discretion.

[00:08:00] Speaker 00:
And commerce also is the one who can decide what documents to request and accept at verification.

[00:08:07] Speaker 00:
And I think here, commerce reasonably drew a line between the two pages that it found of its own accord and the extra pages that Lenny Cheng-en pressed upon it later.

[00:08:16] Speaker 00:
And I think commerce reasonably determined that the two pages it found

[00:08:20] Speaker 00:
were information that fell within the verifications, new information exception, and the extra pages which it found didn't.

[00:08:28] Speaker 00:
But again, we think that even if

[00:08:31] Speaker 00:
the court didn't err in ordering Commerce to accept the documents.

[00:08:35] Speaker 00:
It certainly erred in multiple other respects.

[00:08:37] Speaker 00:
I see I'm into my rebuttal time.

[00:08:39] Speaker 00:
I just quickly wanted to touch on the separate rate issue, though I didn't want to let that go unsaid.

[00:08:44] Speaker 00:
I think here it's very clear that the court substituted its judgment for Commerce's and reweighed the evidence while purporting not to.

[00:08:50] Speaker 00:
You know, despite what the court said about only having two data points or something along those lines, we laid out in our briefs that Commerce actually addressed

[00:09:00] Speaker 00:
several pieces of evidence both from the separate rate exporter in the petition and the 40 separate rate plaintiffs.

[00:09:07] Speaker 00:
And the standard here is whether the amount of evidence commerce relied on rises to the level of

[00:09:13] Speaker 00:
that a reasonable mind could have concluded as commerce did.

[00:09:16] Speaker 00:
And I think in this case, it's very clear that a reasonable mind could have found as commerce did.

[00:09:21] Speaker 00:
And we also think that the court placed undue reliance on Best Pack and adopted that wholesale without consideration of why this case is very different than Best Pack.

[00:09:30] Speaker 00:
I'll save the rest of my time.

[00:09:31] Speaker 02:
I have one question for you quickly, which is it's my understanding that that issue you just mentioned would not be something that this court would consider.

[00:09:41] Speaker 02:
if we were to say that commerce erred in its intermediate input methodology analysis.

[00:09:50] Speaker 02:
Not commerce, I mean CIT.

[00:09:52] Speaker 00:
That's accurate.

[00:09:52] Speaker 00:
This issue only comes into play if the court finds that the CIT did not commit reversible error regarding the intermediate input methodology.

[00:10:01] Speaker 03:
Thank you.

[00:10:02] Speaker 03:
We'll give you two minutes for a bottle.

[00:10:07] Speaker 03:
Thank you.

[00:10:08] Speaker 03:
Ms.

[00:10:08] Speaker 03:
Dawson.

[00:10:14] Speaker 01:
Thank you, Your Honor.

[00:10:15] Speaker 01:
Good morning to the panel.

[00:10:17] Speaker 01:
I think Ms.

[00:10:18] Speaker 01:
Bay handled the issue of the document and the lower courts treatment of that very well.

[00:10:25] Speaker 01:
So I'm going to focus on the separate rate issue.

[00:10:27] Speaker 01:
Congress made itself clear.

[00:10:30] Speaker 01:
Where the mandatory respondents are zero or their margins are based on adverse inferences, those margins are to be weight averaged together to produce the separate rate.

[00:10:39] Speaker 01:
Here, Congress employed the congressionally expected method with a slight deviation.

[00:10:44] Speaker 01:
It used a simple average.

[00:10:45] Speaker 01:
Nobody complained about that instead.

[00:10:49] Speaker 01:
So that's how they came up with the margin rather than a weighted average.

[00:10:53] Speaker 01:
But the lower court, rather than either affirm that or require a weighted average, it endorsed a sharp and inappropriate deviation from the expected method in which there's no averaging at all.

[00:11:03] Speaker 01:
And one of the mandatory respondents is considered fully representative of all the separate rate companies.

[00:11:09] Speaker 01:
Is the key case you're relying on here, Boson?

[00:11:13] Speaker 01:
Is that right?

[00:11:13] Speaker 01:
Prime source, I think, also is very relevant here.

[00:11:16] Speaker 01:
Boson, I think, gives you a closer analog with the facts because it involves a non-market economy case.

[00:11:22] Speaker 01:
But prime source also is a case in which separate rate companies came in and said the expected method, we don't like it.

[00:11:30] Speaker 01:
And this court said, no, this is what Congress expects.

[00:11:33] Speaker 01:
And you actually

[00:11:34] Speaker 01:
You, respondents, whoever wants to deviate from the expected method is the one that bears the burden of showing that it's unreasonable to follow that expected method.

[00:11:44] Speaker 01:
It was a market economy case and prime source involving Taiwan, but I think the prime source case gives a lot of support for a line of precedent that this court has been drawing in the wake of best pack, which narrows best pack significantly and makes it very clear that the expected method

[00:12:03] Speaker 01:
really is to be used.

[00:12:05] Speaker 01:
And only if there is substantial evidence that someone can come up with that shows that it is unreasonable to use that expected method, can that expected method be done away with.

[00:12:17] Speaker 01:
And in that regard, I'd like to point out, yes, there is a bit of a deviation that commerce had here with the expected method.

[00:12:23] Speaker 01:
They used a simple average instead of a weighted average.

[00:12:26] Speaker 01:
At the time this case happened,

[00:12:28] Speaker 01:
That was pretty common.

[00:12:29] Speaker 01:
This court's precedent and precedent of the CIT subsequently involved respondents and others who came forward and said, hey, wait, the statute actually says weighted average, not simple average.

[00:12:40] Speaker 01:
At the time of this case, those cases hadn't really started to percolate through the courts and simple averages were being accepted by pretty much all parties.

[00:12:49] Speaker 01:
Again, no one in this case actually worried about the fact that a simple average was used versus a weighted average.

[00:12:56] Speaker 01:
If you look at pages 1384 to 1386 of the appendix and our opening brief at 30 Note 6, you'll get an idea of, okay, how far a field from a simple average would the weighted average actually take us here?

[00:13:09] Speaker 01:
But my point is this deviation that no one complained about, if the court were to say commerce go back to a weighted average, my client would be perfectly happy with that.

[00:13:23] Speaker 01:
deviation that the separate rate respondents want and that the court below affirmed is so much greater than what commerce did.

[00:13:30] Speaker 01:
And the corollary to that is that the evidentiary burden to justify that sharp deviation must necessarily be high.

[00:13:39] Speaker 01:
Here, the separate rate respondents simply have not come forward with information that justifies that kind of sharp deviation.

[00:13:46] Speaker 01:
And just to briefly touch on the one issue where we're not totally aligned with the government,

[00:13:51] Speaker 01:
in its final remand determination that was accepted by the CIT, Commerce excluded two voluntary respondent companies that had filed questionnaire responses.

[00:14:00] Speaker 01:
They were not actually accepted as voluntary respondents, but Commerce excluded them from the order on the basis of this court's decision in Changzhou HOD and just stating this was reasonable.

[00:14:11] Speaker 01:
In doing so, however, they didn't take into account the fact that the Changzhou HOD court actually didn't require exclusion of voluntary respondents.

[00:14:20] Speaker 01:
And the agency didn't explain why it was treating this case distinctly from its post-Shangzhou investigation into Vietnamese tires in which the agency declined to exclude questionnaire filing voluntary respondents.

[00:14:33] Speaker 01:
Thank you, Your Honors.

[00:14:34] Speaker 03:
Thank you.

[00:14:36] Speaker 03:
Your time has expired.

[00:14:37] Speaker 03:
Mr. Menegas.

[00:14:48] Speaker 05:
May it please the court, such a long, complicated case.

[00:14:52] Speaker 05:
I was thinking of dividing my time into the three issues, the national standard issue, and then the invoicing issue, which are actually linked, and then talking about the separate last, since we didn't divide our time.

[00:15:03] Speaker 05:
I'm speaking for all the appellees here.

[00:15:06] Speaker 05:
So on the issue of the government standard,

[00:15:12] Speaker 05:
It really doesn't make sense, and the court pointed that out.

[00:15:16] Speaker 05:
It's like if you had a title to the novel, like Gone with the Wind, and you tear that off, and it's translated, and then you take the introduction.

[00:15:24] Speaker 05:
Like, what is the point of doing that?

[00:15:26] Speaker 05:
I have an explanation for it, but it's not the one the government offers.

[00:15:30] Speaker 05:
And they try to impugn Cheng Jian's responses as a way of setting up an argument that we should have provided this all along.

[00:15:38] Speaker 05:
But actually, their arguments are without merit.

[00:15:42] Speaker 05:
questionnaires that they cite don't say that you're supposed to give that document.

[00:15:46] Speaker 05:
They say give your documents created in the course of production.

[00:15:50] Speaker 05:
They say nothing about conversions submitted.

[00:15:53] Speaker 05:
And I can give you the appendix site for that if you want, if that would be helpful to the court.

[00:15:59] Speaker 05:
It's in here somewhere.

[00:16:01] Speaker 05:
Anyway, so their citations just don't give any kind of basis to support an argument that we should have given the information earlier.

[00:16:11] Speaker 05:
Let's see, this is Appendix 2797, course of production.

[00:16:20] Speaker 05:
And this conversion happened before production, when they were intaking the raw material.

[00:16:25] Speaker 05:
And that is our Section D from February 28th, the cost section.

[00:16:30] Speaker 05:
And then in the supplemental section, they ask us to describe the types of records we keep, and we explain that, warehouse and tickets.

[00:16:39] Speaker 05:
And they later asked us,

[00:16:41] Speaker 05:
you know, for warehouse out tickets, and we provided them out of inventory.

[00:16:50] Speaker 05:
And they also asked us for material purchases for auxiliary materials such as glue, which we provided them.

[00:16:56] Speaker 04:
But you do, I think the record's clear now, you do use this conversion chart.

[00:17:01] Speaker 04:
as part of your calculation.

[00:17:04] Speaker 05:
It's part of the intake of the logs.

[00:17:06] Speaker 05:
It's part of the process of figuring out what your costs are.

[00:17:11] Speaker 05:
It's not a production record.

[00:17:14] Speaker 05:
Let me just summarize.

[00:17:17] Speaker 05:
We filed nine supplemental questionnaires.

[00:17:19] Speaker 05:
Four of them were on section D. They never asked us for this conversion.

[00:17:23] Speaker 04:
And let's even just assume, I'm willing to assume for the sake of the question, let me, I have another question, let me ask it.

[00:17:30] Speaker 04:
I'll assume that this document was not responsive to any of their requests.

[00:17:36] Speaker 04:
Is there nonetheless, isn't there still something meaningful to the fact that we're talking about the verification stage?

[00:17:43] Speaker 04:
Okay, I'd like to talk about that.

[00:17:45] Speaker 04:
Okay, let me ask the question.

[00:17:47] Speaker 03:
Please let the court ask questions.

[00:17:49] Speaker 03:
Okay.

[00:17:50] Speaker 04:
The fact that it's at the verification stage,

[00:17:53] Speaker 04:
doesn't that mean there need to be real restrictions on any new evidence coming in?

[00:18:01] Speaker 04:
at that stage, and that gives commerce necessarily a lot of discretion in deciding what additional information it's going to consider.

[00:18:09] Speaker 04:
Isn't that implicated here?

[00:18:11] Speaker 05:
Okay, their cover letter, which they quoted in their brief, says, we will accept no information, new information except in these limited circumstances.

[00:18:19] Speaker 05:
The judge found that we met the limited circumstance, and she cited that mid-continental steel case, information that corroborates information that's already on the record.

[00:18:27] Speaker 02:
So we're reviewing commerce's decision de novo.

[00:18:31] Speaker 05:
Right.

[00:18:32] Speaker 05:
So the actually in reality commerce takes thousands of pages of new information at verification.

[00:18:40] Speaker 05:
So there's a cover letter and then there's a reality.

[00:18:42] Speaker 05:
And the verifier has plenary authority to track down any lead he finds in any direction he wants to go.

[00:18:48] Speaker 05:
And this is one of those things.

[00:18:51] Speaker 05:
They never understand everything about a company until they do the verification.

[00:18:54] Speaker 05:
They learn about the company at the verification.

[00:18:57] Speaker 05:
He learned there was a national standard that was used to double check the delivery sheet.

[00:19:01] Speaker 02:
Can I ask you something?

[00:19:01] Speaker 02:
You said earlier that the national standard, that there was no document that specifically asked you to provide it.

[00:19:08] Speaker 05:
That's right.

[00:19:09] Speaker 02:
Nine supplemental questions.

[00:19:10] Speaker 02:
Let me talk.

[00:19:11] Speaker 02:
I'm not done yet.

[00:19:13] Speaker 02:
My question is, how were they to know to ask you for that?

[00:19:18] Speaker 05:
Well, it wasn't a production record, so they didn't need to ask us for it.

[00:19:22] Speaker 02:
How were they to know to ask you for it?

[00:19:24] Speaker 02:
You said that they didn't ask you for it, therefore you didn't know that you had to provide it.

[00:19:29] Speaker 02:
I'm asking how were they to know that they were to ask you for it?

[00:19:32] Speaker 05:
Well, we cited a case of multilayered wood flooring from 2009 where they did ask that question.

[00:19:39] Speaker 05:
We had a manager who responded consuming logs.

[00:19:42] Speaker 05:
We didn't prompt them to ask it.

[00:19:43] Speaker 02:
But in the facts of your case,

[00:19:45] Speaker 02:
What would have caused Commerce to think that they needed to ask you how you, I mean they were asking you for your inputs for all your calculations and you gave them the calculations but you did not tell them that this is how you were calculating the log value, right?

[00:20:01] Speaker 05:
What the company did is they took the cubic meters of log on the delivery sheet and they tested it against, spot checked it against the national standard to see that it was correct.

[00:20:11] Speaker 05:
They had the diameter of the top of the log and the length of the log

[00:20:15] Speaker 05:
and they could say yes, the farmer has 15 logs and he says this one's 30 cubic meters.

[00:20:20] Speaker 05:
So let's double check that against the standard and then we'll record 30 cubic meters.

[00:20:23] Speaker 02:
Is this a different case you're talking about right now?

[00:20:25] Speaker 05:
No, I'm talking and the reason commerce would know there's a conversion is because logs have to, there has to be a calculation to convert the log into cubic meters.

[00:20:34] Speaker 05:
All Asian companies record logs in cubic meters and it's all converted in every case.

[00:20:39] Speaker 05:
So they should have known this from all the years of expertise

[00:20:43] Speaker 05:
doing multilayered flooring, doing plywood one.

[00:20:45] Speaker 05:
This is plywood two, this case.

[00:20:48] Speaker 05:
But regardless, like everything I just said, you could argue is moot because guess what?

[00:20:52] Speaker 05:
The verifier asked for the standard.

[00:20:55] Speaker 05:
He went into the workshop where they had the table for the conversions.

[00:20:59] Speaker 05:
And he said, what's that?

[00:21:00] Speaker 05:
And we said, it's the national standard.

[00:21:02] Speaker 05:
Then he asked to open the drawer.

[00:21:03] Speaker 05:
And in the drawer was the full 12 page standard rolled up.

[00:21:06] Speaker 05:
And he said, I want to see that.

[00:21:07] Speaker 05:
Bring it to the verification room.

[00:21:09] Speaker 05:
So that's what we did.

[00:21:10] Speaker 05:
Part of the facts that's disputed, right?

[00:21:12] Speaker 05:
There's a dispute about exactly what that process was.

[00:21:14] Speaker 05:
I don't think it's disputed that he noticed the company official with the index and asked to open the drawer.

[00:21:21] Speaker 05:
And see, what happened?

[00:21:23] Speaker 05:
This does get very complicated, but in remand one, they submitted a declaration from the verifier.

[00:21:30] Speaker 05:
It is the identity, but it's really kind of silly, because there's only three verifiers on the team.

[00:21:35] Speaker 05:
And they say that they asked for the tables.

[00:21:39] Speaker 05:
I mean, there's a lot of problems with that.

[00:21:41] Speaker 05:
And we had our counsel and two company officials issue rebuttal declarations.

[00:21:47] Speaker 05:
And they took that all on the record and asked for the full standard, fully translated in that first remand.

[00:21:53] Speaker 05:
But my point is really that the commerce has plenary authority to cull the exhibits.

[00:21:59] Speaker 05:
They're collecting thousands of pages.

[00:22:01] Speaker 05:
If he looks at a standard and understands it and says, I don't need pages four through 12, and I don't need the cover page, it's not an issue.

[00:22:12] Speaker 05:
There was no issue in the report.

[00:22:13] Speaker 05:
It was an A plus perfect report.

[00:22:15] Speaker 05:
There was no issue flagging us to file a case brief on this.

[00:22:19] Speaker 05:
He never said in the report, I'm rejecting anything.

[00:22:22] Speaker 05:
And he took the meat, the operative tables, pages two and three.

[00:22:27] Speaker 05:
The only thing he didn't take was a cover sheet with one line on it saying it's the national standard.

[00:22:32] Speaker 05:
And the standard code, which enables you to find it on the internet, is printed on page two.

[00:22:38] Speaker 04:
In addition to the CIT ordering commerce to take the full document and put all the full document on the record, the CIT also ordered commerce to treat that document as complete and accurate.

[00:22:52] Speaker 04:
Even if we grant you the first point, isn't that second point going beyond what the court should properly do?

[00:22:59] Speaker 05:
Well, we also argued they should take judicial notice because it's locatable in 10 seconds on the internet as a national standard.

[00:23:06] Speaker 04:
Is that what gives rise to the authority of the trial court to order commerce to treat it as complete and accurate, that it can be that judicial notice?

[00:23:15] Speaker 04:
Is that what does it?

[00:23:16] Speaker 05:
Well, I think like the document speaks for itself and it's independently verifiable on the internet.

[00:23:22] Speaker 05:
So in all the four remands, the petitioners never came up with a way to undermine that standard.

[00:23:27] Speaker 05:
And actually, in all the later reviews, we're in review seven now, they've never undermined that standard.

[00:23:32] Speaker 05:
And they had multiple opportunities to try to do it.

[00:23:35] Speaker 05:
And then we cited court cases going back to the 1800s, but in our brief to 1919, where the US uses similar standards.

[00:23:43] Speaker 05:
And we also gave them other information that he declined to take about the EU standards and other national standards at verification.

[00:23:50] Speaker 05:
We figured as long as he took the standard we're using, we're not going to make an issue out of the other stuff, and there's just nothing in the report about rejecting the cover page.

[00:23:57] Speaker 05:
We didn't know why you rejected it, and it didn't seem to matter from this A-plus report.

[00:24:03] Speaker 04:
You also had a private... Hold on.

[00:24:05] Speaker 04:
The further argument that I'm interested in your response to then is even if the full document should be on the record, and even if we all agree it's complete and accurate,

[00:24:14] Speaker 04:
Why is it nonetheless improper for commerce to say we're concerned enough about it that we want to use veneers, the intermediate product input, rather than the trees themselves and this whole national standard?

[00:24:32] Speaker 05:
Well, it's a huge penalty on the company.

[00:24:35] Speaker 05:
And they've only used intermediate methodology, like in garlic, where they didn't know how much rain fell on the crops.

[00:24:41] Speaker 05:
This is an industrial product and the company had books and records supporting it.

[00:24:45] Speaker 04:
But isn't it within commerce's discretion to say we are troubled, you know, my words of course, troubled by, you know, concerns even if we accept it's a national standard and it's accurate.

[00:24:58] Speaker 04:
We still think the better way in this instance to measure the production cost is to go to an intermediate.

[00:25:05] Speaker 05:
No, it's unsupported by substantial evidence and massively punitive on the company.

[00:25:12] Speaker 05:
It raised their rate like 250%.

[00:25:13] Speaker 05:
And the company is normally treated on the way the raw materials that they actually consume.

[00:25:20] Speaker 05:
And the documents that are used in every case are the warehouse-in ticket compared to the raw material purchase, which is the other issue I should turn to.

[00:25:30] Speaker 05:
And that's why they link those two issues in their attack on the company.

[00:25:34] Speaker 05:
But getting back to before, I just wanted to note, and it's in the verification report, they have a private translator.

[00:25:39] Speaker 05:
They can ask us.

[00:25:40] Speaker 05:
We have four lawyers that are fluent in English and Chinese.

[00:25:43] Speaker 05:
They never asked us that once they take those pages, they're deemed adequately translated.

[00:25:48] Speaker 05:
But if they had a question about it, they could have issued a letter or a deficiency questionnaire.

[00:25:52] Speaker 05:
And I would argue the law, 1677M small d, requires them to do that.

[00:25:58] Speaker 05:
And they didn't do any of that.

[00:25:59] Speaker 05:
They kind of sat on it and then blew us up in the final.

[00:26:02] Speaker 05:
But so, the other document that is used, so there's two documents that are used to verify raw material purchases.

[00:26:09] Speaker 05:
The commercial invoice for the purchase and the warehouse end ticket and you compare them and in this case, it's the same species and the same cubic meters.

[00:26:17] Speaker 05:
And so, what they're saying is, well, wait a minute, you issued the raw material invoice to the customer, the guy that was selling you the log.

[00:26:24] Speaker 05:
And we're like, yes.

[00:26:26] Speaker 05:
It doesn't say this in the verification report, but you have to have a certain corporate status to have your own VAT forms where the seller issues it.

[00:26:33] Speaker 05:
For poor farmers, they don't have that status and they're not allowed to issue it.

[00:26:37] Speaker 05:
But the company had an office with the government forms and the government chops on it as a government tax form.

[00:26:44] Speaker 05:
And even in the section D of the questionnaire, which is also in the appendix, it says you can provide audited financial statements or tax returns

[00:26:52] Speaker 05:
to verify your submissions, because they recognize if you prepare a tax form, it's presumed to be correct.

[00:26:59] Speaker 05:
And they took many of them at verification, but they never asked for them in a supplemental questionnaire, which was kind of shocking.

[00:27:06] Speaker 05:
They never asked for a single warehouse in ticket or a single commercial invoice for logs.

[00:27:10] Speaker 05:
They asked for glue, they asked for other minor materials, but never for the logs.

[00:27:14] Speaker 05:
It's their right, they propel the questions, but then they thoroughly investigated it at verification.

[00:27:20] Speaker 05:
And those,

[00:27:22] Speaker 05:
VAT invoices verified all the way up to the cost and sales reconciliations that we are obligated to provide and they all passed as is obvious from the report.

[00:27:32] Speaker 05:
So they can't just say the main documents ever used by a company aren't enough.

[00:27:37] Speaker 05:
They didn't cite a single case where somebody failed because they didn't keep a copy of a delivery, like a FedEx receipt that something was delivered.

[00:27:44] Speaker 05:
So they can't fail over that, and they haven't suggested we fail over that, but what they did is increase the margin 250%.

[00:27:50] Speaker 05:
So we don't think it's supported by substantial evidence.

[00:27:54] Speaker 05:
And there was a similar case that may have been decided after our briefing on Shelter Forest, which was another plywood case on circumvention after the order came out.

[00:28:03] Speaker 05:
And it was a very odd version of circumvention where you have to prove the product existed before the case was filed in 2016.

[00:28:12] Speaker 05:
And there was a word for a glue, EV glue, that Commerce pretended not to know what it was.

[00:28:17] Speaker 05:
And Judge Rastani had the case.

[00:28:19] Speaker 05:
And the company wanted to put it in.

[00:28:21] Speaker 05:
Commerce rejected it.

[00:28:22] Speaker 05:
And then the company went to court and wanted to put it into the court, just like I wanted to put this cover page with one line on it onto the court.

[00:28:28] Speaker 05:
And she said, how can I decide whether I should take it or not unless I look at it?

[00:28:32] Speaker 05:
So she said, I'm taking the document to look at it.

[00:28:34] Speaker 05:
Then she remanded and said, you have to let this company explain what EB means in those materials.

[00:28:40] Speaker 02:
Can I interrupt you for a minute and just ask you, what do you think the standard of review here is that should be applied to whether the CIT exited its authority, or really whether commerce

[00:28:52] Speaker 02:
had the discretion to only take so many of the pages at verification.

[00:28:59] Speaker 02:
What is the standard review that we apply and that the Court of International Trade should apply?

[00:29:06] Speaker 05:
She applied arbitrary and capricious standard that they took a document that was legitimately part of the cooperation of documents already on the record

[00:29:15] Speaker 05:
of the warehousing tickets and the commercial invoices.

[00:29:19] Speaker 05:
It was legitimate cooperation.

[00:29:19] Speaker 02:
It was arbitrary and capricious not to consider the entire document as opposed to just two pages?

[00:29:24] Speaker 05:
I don't care about pages four through 12 because they had logged diameters.

[00:29:29] Speaker 02:
I'm just going to guess or no, answer my question so I understand your answer.

[00:29:32] Speaker 02:
Did the Court of International Trade find that it was arbitrary and capricious to only take

[00:29:39] Speaker 02:
two pages versus all of the pages.

[00:29:42] Speaker 02:
Is that what you're saying?

[00:29:43] Speaker 05:
Yes, but also found it particularly odd they didn't take the cover page.

[00:29:47] Speaker 05:
And we don't care about the rest.

[00:29:48] Speaker 05:
So she found that it was really bizarre.

[00:29:51] Speaker 05:
Like they either knew exactly what they were looking at and didn't need the cover page, or they should have taken the cover page.

[00:29:57] Speaker 05:
And so she sent it back to them.

[00:29:57] Speaker 02:
Because in your view the cover page would answer everything for them.

[00:30:00] Speaker 05:
Well, it shouldn't need to because the code for the standard was right on the page two.

[00:30:05] Speaker 05:
So you can find it on the internet in two minutes that way.

[00:30:08] Speaker 05:
actually 30 seconds.

[00:30:10] Speaker 05:
So I'm running out of time.

[00:30:12] Speaker 05:
I guess I really wanted to talk about the separate rates.

[00:30:15] Speaker 03:
You ran out of time.

[00:30:17] Speaker 05:
Different group.

[00:30:18] Speaker 05:
So anyway, I guess if I can't talk about the separate rates, I'll rely on our briefs for that.

[00:30:24] Speaker 03:
I'm afraid your time has been consumed.

[00:30:26] Speaker 05:
Okay.

[00:30:28] Speaker 05:
Thank you, Your Honors.

[00:30:29] Speaker 03:
Ms.

[00:30:29] Speaker 03:
Bay has two minutes for a vote.

[00:30:40] Speaker 00:
Thank you, Your Honor.

[00:30:40] Speaker 00:
I want to start quickly by saying that even to the extent that Commerce's initial questionnaire on APPX 1445 didn't, could be reasonably construed as not asking for the types of document that Cheng-Yin is complaining about here, which we vigorously dispute.

[00:30:58] Speaker 00:
It's indisputable that the coalition, the petitioner, put the reliability of Cheng-Yin's log volume calculations squarely at issue early in the proceeding and

[00:31:08] Speaker 00:
It was Chang's responsibility at that point to build a complete record that would support their position that the law and calculations were accurate, and that would include any conversion tables and formulas, any third-party corroboration, anything of that sort.

[00:31:24] Speaker 00:
I'll quickly cite something that my counsel over here said, which is that the verifier has plenary authority at verification.

[00:31:32] Speaker 00:
I think that says it all.

[00:31:34] Speaker 00:
The verifier does have plenary authority, and he exercised that authority.

[00:31:37] Speaker 00:
Quickly regarding judicial notice, Cheng-en wants the court to take judicial notice, but it's important to note that the CIT didn't actually take judicial notice.

[00:31:48] Speaker 00:
Indeed, it never explained why commerce had to deem the documents complete and accurate.

[00:31:57] Speaker 00:
Quickly, I want to emphasize that this is not a punitive measure that Commerce took.

[00:32:01] Speaker 00:
It's not AFA or anything resembling AFA.

[00:32:04] Speaker 00:
Rather, it just informed whether Commerce found the log volume calculations reliable enough to use the FOP methodology or the intermediate input methodology.

[00:32:14] Speaker 00:
And here, yes, the intermediate input methodology ended up with a higher rate

[00:32:19] Speaker 00:
But that does not mean in and of itself that the rate is less accurate or that it would even always be higher than valuing the factors of production themselves.

[00:32:29] Speaker 00:
I'm happy to answer any other questions that the court has.

[00:32:32] Speaker 00:
Otherwise, we ask that the court reverse.

[00:32:34] Speaker 03:
Thank you.