[00:00:02] Speaker 04:
uh... our next case this morning is number eighteen dash twenty two sixty nine zan medals and minerals versus united states mister salzman many guesses first

[00:00:18] Speaker 02:
Thank you.

[00:00:19] Speaker 02:
May it please the court.

[00:00:20] Speaker 02:
We are here on behalf of Cheon Metals because we believe that for a single reason, the surrogate value of low carbon steel, which we believe has inflated our margin about 50%.

[00:00:32] Speaker 02:
So we had a 72% in the final results, and we believe 50% of that is from this single decision.

[00:00:38] Speaker 02:
where the department selected a value for low-carbon steel, which is the majority of the steel used in our nails, that was 26 percent higher than 14 benchmark prices that we put on the record.

[00:00:51] Speaker 02:
And so that's a very high number for a commodity steel, and we can see the massive impact it had on the company's margin.

[00:01:01] Speaker 02:
And so what I'd like to do is talk about two issues, and my colleague Ms.

[00:01:04] Speaker 02:
Salzman will address the remaining issues in a rebuttal.

[00:01:07] Speaker 02:
I'd like to talk about the evidence of government distortion and the tie import values, and then go over the benchmark prices with you.

[00:01:15] Speaker 02:
And the lower court jurisprudence cited in our brief indicates that when you can make a linkage between the government distortion and the inflated values, you have a case that the department has to reconsider its survey value selection.

[00:01:30] Speaker 02:
And so with that, turning to the USTR reports at pages 21 through 23, we bolded certain lines, and I'd like to read perhaps just four of them if the court would indulge me, from the various sources.

[00:01:43] Speaker 02:
We have multiple annual reports of the US trade representative, the FedEx country report, and the Commerce Department's own export report.

[00:01:52] Speaker 02:
So turning to page 21, the USTR report,

[00:01:56] Speaker 02:
that Thai authorities would, quote, arbitrarily increase the customs value of imports.

[00:02:01] Speaker 02:
Turning to page 22 of our brief, the FedEx country report says that the Thai customs keeps records of the highest declared price of products.

[00:02:12] Speaker 03:
And then regularly... What do you make of the criticism that those reports are speaking generically and they're not speaking to the exact product at issue in this case?

[00:02:22] Speaker 02:
Right.

[00:02:23] Speaker 02:
Well, my fourth sentence was going to be from the Department, Commerce Department's own report on page 23.

[00:02:32] Speaker 02:
The Thai authorities, quote, repeatedly use arbitrary values.

[00:02:35] Speaker 02:
In other words, there's no limitation in these reports that they're only used for particular products.

[00:02:41] Speaker 02:
And steel is a strategic product.

[00:02:43] Speaker 02:
We look at the President's 232 tariffs.

[00:02:45] Speaker 02:
He didn't go and put the tariffs on zinc plating for the nails.

[00:02:49] Speaker 02:
He went after steel first because it's a strategic product.

[00:02:52] Speaker 04:
But there's nothing in these reports that mentions steel in particular.

[00:02:56] Speaker 02:
That's right.

[00:02:57] Speaker 04:
But what the reports say.

[00:02:59] Speaker 04:
What products are mentioned, specifically cigarettes and alcohol?

[00:03:03] Speaker 02:
But those are just examples.

[00:03:04] Speaker 04:
Is that correct?

[00:03:05] Speaker 04:
Yes.

[00:03:06] Speaker 04:
So are there other examples besides cigarettes?

[00:03:09] Speaker 02:
Not mentioned in the reports.

[00:03:10] Speaker 02:
Those are just examples.

[00:03:11] Speaker 02:
The reports say that the Thai authorities are pervasively increasing the values.

[00:03:17] Speaker 02:
that's they're generating revenue by insisting that importers pay the highest indicative price from a previous period.

[00:03:25] Speaker 02:
So the Thai authorities' interest is in generating revenue by maintaining the highest possible prices based on previous quarter benchmarks that they call indicative prices.

[00:03:36] Speaker 02:
And so it's not logical that they would only go after two products in a huge range of products.

[00:03:42] Speaker 02:
And we have the evidence in the benchmarks

[00:03:45] Speaker 02:
as well.

[00:03:46] Speaker 03:
So, I mean, I don't really want... In reading those reports and understanding what they stand for, that's something that we view Commerce's determination for under the substantial evidence standard, right?

[00:03:59] Speaker 02:
Well, that's the base standard.

[00:04:01] Speaker 02:
But I would suggest the standard is a lot lower to disregard the tie imports.

[00:04:08] Speaker 02:
And for example, in multiple respects, but if you look to turn to page 28 of our brief,

[00:04:14] Speaker 02:
What commerce has done for Thailand, they found some generally available export subsidies available to exporters when they export from Thailand.

[00:04:21] Speaker 02:
And they said because some companies and some products were once found to be subsidized in their exports, we're going to disregard all Thai exports forever as surrogate value inputs.

[00:04:34] Speaker 02:
In other words, having found distortion once for a few products, they've now painted Thai exports with a broad brush.

[00:04:42] Speaker 02:
All exporters, all products, their values will forever be disregarded by the department, and that practice exists to this day.

[00:04:49] Speaker 02:
And so the problem is it's government interference.

[00:04:53] Speaker 02:
Now there's another context for this where if they find government subsidies on a financial statement, the congressional intent says if you have reason to believe or suspect government interference, we will disregard the financial statement.

[00:05:06] Speaker 02:
And commerce has almost a blanket rule to disregard all financial statements with any evidence of subsidies.

[00:05:11] Speaker 02:
So I had a case that I lost when we had zero for the subsidy.

[00:05:15] Speaker 02:
It was an Indian case where there was a packing credit

[00:05:18] Speaker 02:
And I said, but it's zero.

[00:05:19] Speaker 02:
And the court said, we don't care.

[00:05:21] Speaker 02:
It proves the government was interfering in the company's operations.

[00:05:25] Speaker 02:
And it's the reason to believe or suspect standard.

[00:05:28] Speaker 02:
And so that's very low.

[00:05:30] Speaker 02:
It's not substantial evidence.

[00:05:31] Speaker 02:
And particularly when we look at how they disregard all Thai exports,

[00:05:36] Speaker 02:
We think these USTR reports are equally as persuasive in suggesting there's a real problem with the tie imports.

[00:05:43] Speaker 03:
I understand that your position that commerce is using a reason to believe standard, right?

[00:05:50] Speaker 03:
But our review of their determination is substantial evidence that a reasonable fact finder could find that there's reason to believe, right?

[00:05:58] Speaker 02:
They're using a substantial evidence test.

[00:06:00] Speaker 02:
But what I'm suggesting in other narratives.

[00:06:02] Speaker 03:
When you say they, who are you referring to?

[00:06:03] Speaker 02:
The Commerce Department.

[00:06:04] Speaker 02:
The Commerce Department is using a substantial evidence test.

[00:06:07] Speaker 02:
But what I'm suggesting in the context of financial statements, in the context of Thai exports.

[00:06:12] Speaker 02:
So if you were using India as the main surrogate country and some of the import values Commerce likes to use were from Thailand, they'd all be carved out and not used.

[00:06:22] Speaker 04:
I don't understand what you mean that Commerce is using a substantial evidence test.

[00:06:26] Speaker 04:
We use a substantial evidence test, but why do they use it?

[00:06:29] Speaker 02:
Right.

[00:06:29] Speaker 02:
Well, Judge Stoll was asking what standard is being applied.

[00:06:33] Speaker 03:
I want to know what standard we applied to review of commerce's determination.

[00:06:37] Speaker 02:
And I'm saying that is the framework standard, but there are some lower standards that commerce uses in the specific context of surrogate values where it will disregard certain data sets as unreliable.

[00:06:51] Speaker 03:
What is your basis, though, for saying that commerce applies a substantial evidence standard?

[00:06:56] Speaker 02:
What I meant to say is that commerce is using actually a lower standard in similar contexts where there's government interference in the market for financial statements and all Thai exports.

[00:07:09] Speaker 02:
And so we're saying, why don't they also use that standard for Thai imports when we have these USTR reports?

[00:07:14] Speaker 02:
We don't have these USTR reports against Ukraine and the Philippines, which were our alternative surrogate countries.

[00:07:20] Speaker 02:
So why aren't those sources better than a country where there's pervasive Thai interference in imports specifically to raise the values and collect additional revenue?

[00:07:32] Speaker 02:
So that's our argument.

[00:07:34] Speaker 02:
But even the lower courts, who have not ruled specifically on the USTR reports, and they were applying substantial evidence tests, said when you link the government interference to the higher prices compared to various benchmarks, then there's a cause for a remand.

[00:07:52] Speaker 02:
And we think that in that case, for example, as Jacoby cited on page 14 and 15 of our brief,

[00:08:01] Speaker 02:
They say when there's a linkage, then you really have a problem and the agency's got to revisit this issue and explain more about why these values are justified.

[00:08:12] Speaker 05:
If we follow the direction you're trying to go in, how do we keep ourselves from having to evaluate the political temperature

[00:08:27] Speaker 05:
and the official behavior of every country that commerce wants to use as a surrogate.

[00:08:33] Speaker 02:
Well, these reports are talking about political temperature.

[00:08:37] Speaker 02:
Where is the line to be drawn?

[00:08:40] Speaker 02:
For example, in the USTR reports, there's only, on this record, there's a USTR report about Thailand and not about the other countries.

[00:08:47] Speaker 02:
So we're paying attention to the USTR, which is a government agency that is expert in evaluating distortion.

[00:08:54] Speaker 02:
And this distortion goes towards increasing the import values to generate revenue.

[00:08:59] Speaker 02:
So it's directly relevant to the exercise here, which is

[00:09:03] Speaker 02:
provide a neutral fair asserted value the best available information for shion metals low-carbon steel so so this rule disregarding all product that's right commerce is already moved off of thailand so this is kind of an historical exercise for us here they're no longer relying on thailand

[00:09:27] Speaker 02:
But at this time, they were the only company with all these reports.

[00:09:30] Speaker 02:
It was USTR, it was FedEx, and it was the Commerce Department's Export Division having all these serious concerns about the Thai import values.

[00:09:38] Speaker 02:
And we backed that up with the benchmark information that's listed at page 1617 of our brief.

[00:09:44] Speaker 02:
And it seems like Mrs. Saltzman may be able to address that more.

[00:09:49] Speaker 02:
But I would, you know, for example, I'd maybe just paint, since I have very little time, turning to page 17,

[00:09:56] Speaker 02:
You can see that most of that part of the chart is all the biggest Thai producer of steel wire rod in Thailand.

[00:10:04] Speaker 02:
It's a domestic price starting at 635 for low carbon steel.

[00:10:10] Speaker 02:
Now the bottom four come right from Tata Steel's financial statements covering RPOR 2013 and 2014.

[00:10:17] Speaker 02:
They're in the 600 to low 700 range.

[00:10:21] Speaker 02:
The courts have also said, you know, you've got to pay attention to those benchmark because if you're pretending that Xi'an Metals is operating from Thailand, why are you assigning to them a metal raw material cost that's 26% higher than what would be available from the largest steel producer in Thailand?

[00:10:37] Speaker 02:
So that's what we feel is a very persuasive benchmark.

[00:10:42] Speaker 02:
And it's actually, you know, with respect to the bottom four numbers,

[00:10:46] Speaker 02:
even a little bit adverse to us because it includes some high carbon steel.

[00:10:49] Speaker 02:
So that's why we think that low carbon quote at 635 is much more relevant.

[00:10:56] Speaker 02:
I'm going to cede the rest of my time to my colleague if that's okay.

[00:11:01] Speaker 02:
Is she going to argue in rebuttal or?

[00:11:03] Speaker 02:
She's going to argue, yes, I'm past my, a lot of time.

[00:11:07] Speaker 02:
Okay.

[00:11:07] Speaker 02:
But it's up to the board.

[00:11:09] Speaker 02:
Thank you.

[00:11:15] Speaker 04:
Ms.

[00:11:15] Speaker 04:
Bay, is that how you pronounce it?

[00:11:17] Speaker 06:
Yes, Your Honor.

[00:11:21] Speaker 04:
Wasn't, didn't we recently have another case involving the same issue about the tie data?

[00:11:27] Speaker 04:
Am I mistaken?

[00:11:28] Speaker 06:
No, Your Honor.

[00:11:29] Speaker 06:
You did recently, I think pretty recently, have a case, and I was actually going to bring that up.

[00:11:34] Speaker 06:
I believe, Your Honor, it might be referring to the Guangdong case, which was a review of the Court of International Trade's decision in the LK manufacturing case, which did address this very issue of the appellant in that case, which I believe might have even been that same counsel.

[00:11:50] Speaker 06:
trying to use these USTR and other reports to show that the Thai data was unreliable.

[00:11:56] Speaker 06:
And in that Guangdong case that this court recently heard, this court did affirm, albeit without opinion, the determination of the Court of International Trade that the generalized concerns or concerns with respect to cigarettes and alcohol that were posed in the

[00:12:16] Speaker 06:
reports were not enough to constitute a reason to believe or suspect that there was dumping or subsidizing with respect to these specific products.

[00:12:26] Speaker 04:
Is this issue involved in yet other cases or is this the only remaining case?

[00:12:31] Speaker 06:
I'm not sure that there are any other cases that are currently pending in which this issue is being argued.

[00:12:41] Speaker 06:
However, I know that there were several court of international trade decisions within the last few years dealing with this issue.

[00:12:47] Speaker 06:
And I believe basically all of them stated that these generalized concerns were not enough

[00:12:53] Speaker 06:
that Congress's determination that these generalized concerns were not enough to render the Thai data unreliable as to specific inputs was reasonable and supported by substantial evidence.

[00:13:06] Speaker 03:
You were saying there's other CIT opinions that specifically deal with the same USTR report and FedEx report.

[00:13:13] Speaker 06:
Yes, Your Honor.

[00:13:14] Speaker 06:
And we do cite them in our brief.

[00:13:16] Speaker 06:
But I would also turn the Court's attention to one recently issued decision that we did not cite in our brief from the Court of International Trade, as that decision came out subsequent to our response brief in that case, or in this present case.

[00:13:30] Speaker 06:
And that case would be the Jiaxing Brother Fastener Co., the United States case.

[00:13:35] Speaker 06:
And the citation, if Your Honor is interested, is 380 F sub 3rd 1343.

[00:13:42] Speaker 06:
And in that case, I believe the Court of International Trade actually did a good job of explaining that these generalized concerns or concerns as to other products does not constitute specific and objective evidence supporting a reason to believe or suspect that the Thai data as to steal imports was distorted.

[00:14:00] Speaker 04:
What about the contention that there's an inconsistency between commerce's treatment of the Thai data in this context and other treatment of

[00:14:12] Speaker 04:
situations where there's possible government interference.

[00:14:16] Speaker 06:
Your Honor, again, I dispute that there is inconsistent treatment.

[00:14:21] Speaker 04:
I think the standard that Commerce applied in both... But just help us to describe what the difference is between the two situations.

[00:14:28] Speaker 06:
Sure, Your Honor.

[00:14:29] Speaker 06:
I believe Mr. Menegas was referring to certain situations.

[00:14:33] Speaker 06:
I don't believe they went into much specificity as to the actual evidence at hand in their briefs, but where

[00:14:40] Speaker 06:
commerce disregarded or excluded certain export data because commerce had reason to believe or suspect that the

[00:14:51] Speaker 06:
that the data was subject to subsidizing or dumping.

[00:14:56] Speaker 06:
And again, this is the same standard that commerce would apply here, which is a reason to believe or suspect.

[00:15:02] Speaker 06:
And I don't believe that Jean here is contesting the reason to believe or suspect standard.

[00:15:07] Speaker 06:
And I don't think this court has necessarily articulated

[00:15:10] Speaker 06:
what exactly a reason to believe or suspect means, but Commerce has and the trial court has established that the reason to believe or suspect must be established by particular, specific and objective evidence.

[00:15:24] Speaker 06:
And here there is no particular or specific evidence that these Thai customs practices of which

[00:15:33] Speaker 06:
Jean alleges and which are set forth in the reports are particular and specific evidence as to these particular steel inputs being distorted.

[00:15:43] Speaker 05:
Now I know Jean... You don't dispute that those problems exist in the Thai customs world, do you?

[00:15:49] Speaker 06:
We do not dispute that the USTR reports discuss that there are concerns with some Thai customs practices and particularly with regards to cigarettes and alcohol, but we do dispute that that constitutes specific or objective evidence that the data at issue in this case is unreliable.

[00:16:07] Speaker 06:
And I do want to move to Jean trying to tie that to the alleged aberrancy issue in this case.

[00:16:16] Speaker 06:
First of all, it's entirely speculative on Jean's part that there is even a link between these alleged practices, which were not, again, specific to the product at hand and any alleged distortion as a result of this, again, alleged aberrancy.

[00:16:32] Speaker 06:
all Jian puts on the record and commerce again specifically went through each of these sets of benchmark data and determined that they were not even appropriate benchmarks to measure the Thai data that Jian disputes against.

[00:16:47] Speaker 06:
As a result, there was no finding of aberrancy made and Jian

[00:16:51] Speaker 06:
did not put any evidence forward to show that even if Jean's number of 26% higher is true, that that would in fact demonstrate aberrancy.

[00:17:01] Speaker 06:
In fact, the Court of International Trade has stated that commerce would find aberrancy in a situation where the price at hand is many times higher than

[00:17:11] Speaker 06:
other benchmark prices and here we're talking about 26 percent one and a quarter times whereas even the cases that Jean cites we're dealing with things that are I think twenty three hundred percent higher or three times higher which is three hundred percent higher so the order of magnitude referring to the LK case

[00:17:28] Speaker 06:
No, I'm referring to the pure-bearing and the Jacobi Carbons cases that Jean cited.

[00:17:35] Speaker 06:
And again, with regard to those cases, I think there is another point I'd like to bring up with respect to the data from the other countries that Jean offered up as benchmarks.

[00:17:48] Speaker 06:
Regardless of whether those benchmark data countries were economically comparable or not, one key factor is that at least for I think two of the three sets of data, China itself, which is the home market we're dealing with here, was part of that data set and it would be inappropriate for commerce to rely on benchmark data for which the home market that we're trying to figure out the normal value for is actually part of the data set.

[00:18:13] Speaker 06:
and which is also a non-market economy country.

[00:18:17] Speaker 06:
And again, commerce is required to use market economy countries to try to determine a normal value.

[00:18:22] Speaker 06:
So, as I said, there is no indication of aberrancy even if you take John Meadow's 26% and the benchmark data offered at face value, but there's no reason to even do that here because commerce made a reasoned determination as to why each of these sets of data were not reliable or appropriate benchmarks.

[00:18:43] Speaker 06:
And I would just like to finish up by talking a little bit about the specificity of the inputs.

[00:18:52] Speaker 06:
Again, commerce is afforded wide discretion in valuing factors of production and determining the best available information.

[00:19:01] Speaker 06:
So even if Jean might disagree, or even if the court might think there is a different way that commerce could have evaluated the factors of production, the only standard is that a reasonable mind might accept commerce's determinations or reasoning as adequate.

[00:19:15] Speaker 06:
And this is something that this court has held and that the trial court has always implemented.

[00:19:21] Speaker 06:
And here, Jian is essentially asking this court to reweigh the evidence and substitute its judgment for that of the agency, which it should not do.

[00:19:31] Speaker 06:
went into actually a very large amount of detail as to why the Thai data was more specific than the Philippine data and the Ukraine data.

[00:19:39] Speaker 06:
And a lot of that depends on the carbon content, which Commerce has highlighted as an important factor.

[00:19:44] Speaker 06:
And one thing I would like to point out is that Jian Metals, on page four of its reply brief, actually acknowledges that the Philippine data could be considered less specific than the Thai data.

[00:19:56] Speaker 06:
That in and of itself is almost a concession that commerce's determination was at least reasonable or supported by substantial evidence, even if Jean might disagree.

[00:20:05] Speaker 06:
And then I would also like to just finish up by saying that Jean's arguments with regard to the specificity of the Thai steel wire rod and steel plate inputs, Jean only argues that that data is not specific as to its own inputs.

[00:20:22] Speaker 06:
It completely ignores the material inputs

[00:20:24] Speaker 06:
for the other respondent in this case, Stanley Nails.

[00:20:27] Speaker 06:
And Commerce's responsibility is to determine which the best available information is for both respondents, not just Jeanne.

[00:20:36] Speaker 06:
And in fact, I believe in this review, Stanley Nails was in fact the one that recommended and put the TIE data on the record for Commerce to consider.

[00:20:45] Speaker 06:
Finally, I just want to point out quickly that the record here lacks surrogate value data from the Philippines and Ukraine with regard to several other inputs that Stanley consumed.

[00:20:58] Speaker 06:
And so, again, the tie data is the only one with surrogate values for both respondents' material inputs.

[00:21:04] Speaker 06:
And with regard to the Ukraine data, Commerce did state that it was not just the specificity, although that was an issue, but that the Ukraine Metal Experts data was not tax and duty exclusive.

[00:21:17] Speaker 06:
And tax and duty exclusivity is one of the five factors that Commerce considers when determining what the best available information is for factors of production.

[00:21:27] Speaker 06:
If this court has no other questions, I just ask respectfully that the court affirm the decision of the trial court.

[00:21:33] Speaker 06:
Thank you.

[00:21:33] Speaker 04:
Okay, thank you, Mr. Borden.

[00:21:45] Speaker 01:
morning i may please the court adam gordon on behalf of uh... defendant appellee mid-continent steel and wire uh... i'd just like to touch on to uh... main points picking up on what miss bay was ending on the use of thai wire rod data here the pricing of thai wire rod data flowed from the selection of thailand as a surrogate country thailand is selected as a surrogate country in the review in large part because only the thai data on the record allowed commerce to value all the inputs for both respondents

[00:22:14] Speaker 01:
studiously ignores the existence of Stanley, but they are one of the two respondents whose inputs needed to be valued.

[00:22:22] Speaker 01:
And as Commerce specifically noted in its decision, the information for Ukraine and the Philippines did not contain values for all of the inputs.

[00:22:30] Speaker 01:
And in fact, the inputs included a very important one.

[00:22:33] Speaker 01:
Commerce specifically called out copper-coated welding wire, which is fundamental to how one of the main types of the subject merchandise is actually manufactured.

[00:22:41] Speaker 01:
I'd like to shift gears briefly to the claim that the TIE wire rod values are aberrational.

[00:22:48] Speaker 01:
They are not.

[00:22:50] Speaker 01:
It is true that on average, the TIE values that Commerce used are 26 percent higher than the benchmarks that Jian put on the record.

[00:22:57] Speaker 01:
But I will note that even within the benchmark values that Jian put on the record, those values differ by nearly 30 percent, from $601 per metric ton to $790 per metric ton.

[00:23:07] Speaker 01:
And also, the cases that Jian relies on, the two Jacobi cases, are fundamentally different.

[00:23:13] Speaker 01:
In those cases, the values at issue were 3 to 4,000 percent greater than the benchmark values.

[00:23:19] Speaker 01:
And also, in a second case, it was 300 percent greater, plus Commerce had evidence of the surrogate values in the past two reviews that was also fundamentally undermining the values that Commerce wanted to use in the challenge review.

[00:23:32] Speaker 01:
There's nothing on the record to support that type of analysis here.

[00:23:36] Speaker 01:
With that, I would end and request that the court affirm Congress's decision.

[00:23:40] Speaker 01:
Thank you very much.

[00:23:41] Speaker 04:
OK.

[00:23:41] Speaker 04:
Thank you, Mr. Gordon.

[00:23:43] Speaker 04:
Ms.

[00:23:43] Speaker 04:
Halsman?

[00:23:49] Speaker 00:
I'd like to discuss the three primary issues we've been discussing, the specificity, the USTR issue, and the benchmarks, all of which contributing together to the department's decision.

[00:24:04] Speaker 00:
Just a brief comment on specificity.

[00:24:06] Speaker 00:
I'd like to comment more on the USTR reports.

[00:24:10] Speaker 00:
But on specificity, just as an overarching matter, which we argued, regardless of whatever specificity there may be in the Thai data, if they are aberrant and they are distorted, it doesn't matter how specific they are, you can't overcome that by being specific.

[00:24:27] Speaker 00:
And that speaks to other smaller issues in both records in Ukraine and Philippines.

[00:24:33] Speaker 00:
But more importantly with the detail, as we've argued at length in our brief, that type of detailed low carbon is not supported by Stanley and by Gion Metals.

[00:24:44] Speaker 00:
That level of specificity matters in our purchasing.

[00:24:47] Speaker 00:
We did discuss Stanley in our brief.

[00:24:50] Speaker 00:
Yes, we put more emphasis on our own client, but Stanley purchases low carbon steel and they provided one of the ranges that they purchase under but the

[00:25:00] Speaker 00:
They say that they purchase low carbon steel as do us.

[00:25:04] Speaker 00:
And the condoms, which lay out the product specifications for this product, only specify low carbon steel under .25.

[00:25:13] Speaker 00:
The purchasing materials of our downstream customers, when they're buying nails from us, they're not asking for .10 to .12 in our steel content.

[00:25:22] Speaker 00:
That level of specificity is not supported by the record as mattering.

[00:25:26] Speaker 00:
What matters is whether it's low carbon or not.

[00:25:31] Speaker 00:
And for that case, you do have Ukraine, both metal export, which the department has relied on despite the tax issue, and you have the Ukraine import price, which precisely matches the low carbon grouping that the department uses in product matching and that we use in our purchasing.

[00:25:46] Speaker 00:
So we've briefed out at length how we actually determine our specificity is not in these little incremental overlapping carbon contents.

[00:25:55] Speaker 00:
And then again, even with those issues, specificity doesn't overcome an aberrancy and a distortion.

[00:26:02] Speaker 00:
We were discussing USTR reports a fair amount before.

[00:26:07] Speaker 00:
Just to be clear, we're not saying they need to make a bright-line rule that Thailand can never be used.

[00:26:14] Speaker 00:
We're saying Thailand, when you have something more, you have these USTR reports and you have something more.

[00:26:20] Speaker 00:
You have the aberrancy that we've pointed to.

[00:26:23] Speaker 00:
And the Jacobi Carbon case that we cite in our brief mentions that exact point.

[00:26:30] Speaker 00:
There have been other CIT cases addressing USTR reports and finding maybe they weren't specific enough.

[00:26:36] Speaker 00:
jacobi they said we see that generality but here you have more than just that you have prices that are higher they're saying we do have that something more as jacobi carbon said here in this case what about the fact that in jacobi the something where the values were three times the average values do you think that's a distinguishing factor

[00:26:56] Speaker 00:
No, so that case, it wasn't, one, it wasn't all of the, it was a few different inputs.

[00:27:02] Speaker 00:
It wasn't the major raw material and it wasn't a commodity price.

[00:27:04] Speaker 00:
When you're looking at aberrancy, shouldn't it just be a straight, if you hit 60%, you're aberrant now.

[00:27:10] Speaker 00:
You need to consider what type of product this is and how it impacts the downstream product.

[00:27:15] Speaker 00:
This is low carbon.

[00:27:17] Speaker 04:
Why is 26% aberrant here?

[00:27:18] Speaker 00:
26 because it's a commodity price like this is the what's driving our entire the entire margin difference as my colleague said it's about double because of this 26 percent increase this is different than if you have a case with a bunch of different chemicals a bunch of different raw materials that are maybe not shared um traded internationally as much this is steel wire rod this is a major commodity it's the vast majority seems to vary by more than 26 percent

[00:27:48] Speaker 00:
But all of those are in a banner.

[00:27:50] Speaker 00:
They're all in a range so much lower.

[00:27:52] Speaker 00:
We didn't provide just a very cherry-picked variety of things.

[00:27:56] Speaker 00:
We provided major world benchmarks that the department relies on in countervailing cases from international sources.

[00:28:03] Speaker 00:
We provided domestic sources in Thailand itself, export prices from Thailand, prices in the other surrogate countries.

[00:28:11] Speaker 00:
This is a wide variety of prices on the record that are all showing that this Thai source is much higher

[00:28:17] Speaker 00:
than all of these other prices.

[00:28:19] Speaker 00:
This is a large realm of information that's on the record showing that 26% for a commodity price is a major difference.

[00:28:29] Speaker 00:
And also, I wanted to correct a point with the USTR reports.

[00:28:31] Speaker 00:
They are not specific to alcohol and cigarettes.

[00:28:33] Speaker 00:
That's the WTO report on the record where there are allegations from the EU.

[00:28:38] Speaker 00:
The USTR reports are general.

[00:28:39] Speaker 00:
They're not discussing that they're not giving an example of just alcohol or just cigarettes.

[00:28:45] Speaker 04:
Do they give examples of alcohol and cigarettes?

[00:28:46] Speaker 00:
Not in the USTR reports, in the WTO report.

[00:28:49] Speaker 03:
Do they have examples at all in the USTR reports?

[00:28:52] Speaker 00:
No, you can read, they're being general about it, but that generality which the department keeps bringing up, they're using it to dismiss basically any import value then.

[00:29:04] Speaker 00:
You can't use these to support anything.

[00:29:06] Speaker 04:
What is the USTR, what data did they review?

[00:29:09] Speaker 00:
I am not sure.

[00:29:10] Speaker 00:
I know that they say that they're discussing with other exporters and the whole report, I mean it's on the record, you put the whole report, you can look at what sources they reference for this annual report they put out on trade barriers.

[00:29:26] Speaker 00:
It's a government agency.

[00:29:27] Speaker 00:
Their whole role is to be involved in our trade.

[00:29:30] Speaker 00:
And they put in a very serious allegation.

[00:29:32] Speaker 00:
It keeps getting dismissed as a speculative concern.

[00:29:36] Speaker 00:
It can't be.

[00:29:36] Speaker 00:
This is the US government saying, Thailand, you're manipulating your import values.

[00:29:41] Speaker 00:
We're putting this in our annual report every year.

[00:29:44] Speaker 00:
This should not just be dismissed as a general concern.

[00:29:47] Speaker 00:
That's not happening.

[00:29:49] Speaker 00:
On this record, you have that report.

[00:29:51] Speaker 00:
and you have all of these different benchmarks.

[00:29:55] Speaker 00:
Ultimately, commerce hasn't considered the breadth of information on this case.

[00:29:59] Speaker 00:
Instead, they keep dismissing information, not confronting information, saying this benchmark isn't exactly what we want to look at.