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

[00:00:01] Speaker 03:
And I call case number 191591, Solar World Americas versus United States.

[00:00:12] Speaker 03:
Now, I think we should all begin by begging each other's indulgence, because this is a very confusing case in terms of the parties are and what they're arguing.

[00:00:23] Speaker 03:
And we've got to cross the volunteer and so forth.

[00:00:27] Speaker 03:
So it would help me, at least,

[00:00:29] Speaker 03:
if each council could start off with five seconds of discussing what your position is before the court this morning.

[00:00:38] Speaker 03:
Mr. Freed.

[00:00:40] Speaker 01:
Good morning, Chief Judge and Your Honors.

[00:00:42] Speaker 01:
John Freed on behalf of Trina Solar.

[00:00:45] Speaker 01:
Trina Solar is challenging two commerce determinations with respect to surrogate values.

[00:00:50] Speaker 01:
And we are replying to Solar World's claim with regard to commerce evaluation of Trina's

[00:01:02] Speaker 03:
Okay, please proceed.

[00:01:05] Speaker 01:
May it please the court, again, good morning, Chief Judge, and Your Honors, John Fried of Trade Pacific PLC on behalf of Trina Solar.

[00:01:13] Speaker 01:
First, with regard to commerce's valuation of Trina's nitrogen factor of production using Thai import data, despite abundant evidence, the Thai import data was aberrant and unreliable.

[00:01:28] Speaker 01:
The first issue,

[00:01:31] Speaker 01:
With respect to the valuation of nitrogen, Commerce valued Trina's nitrogen consumption based on a small quantity of imports into Thailand, for which the Thai data expressed an average price of $11.68 a kilogram.

[00:01:43] Speaker 01:
Commerce ignored all of the evidence submitted by Trina that established the unreliability of the Thai import data, including all other potential surrogate value information, which represented over 99% of the record information with respect to nitrogen prices,

[00:02:02] Speaker 03:
Well, could I interrupt you here, Mr. Fried?

[00:02:04] Speaker 03:
I get your argument.

[00:02:06] Speaker 03:
I mean, I get the case you make about the quantities versus the amount.

[00:02:12] Speaker 03:
And it may have some sympathy at some level.

[00:02:18] Speaker 03:
But my concern is we've got a deferential standard of review.

[00:02:21] Speaker 03:
And the standard seems to be whether the import data is aberrant just because the import quality is low.

[00:02:32] Speaker 03:
And how would you say that we have to assess that?

[00:02:35] Speaker 03:
What are the rules of the game with regard to this?

[00:02:40] Speaker 01:
Commerce, we agree that small quantities are not inherently unreliable.

[00:02:46] Speaker 01:
But in this case, we've demonstrated that these small quantities are.

[00:02:49] Speaker 01:
When commerce is faced, well, first we'll start with commerce's default kind of source for valuing materials in these non-market economy anti-dumping cases is to use import data.

[00:03:00] Speaker 01:
And when those import data

[00:03:03] Speaker 01:
has some problem commerce or there's an allegation of some unreliability or aberration, commerce's default test is to look at other countries that are similarly economically comparable to China and look at the import value into those countries and see if the Thai import value for nitrogen falls within the range of the countries.

[00:03:28] Speaker 01:
Here, commerce did that.

[00:03:30] Speaker 01:
They said, okay, the Thai-

[00:03:33] Speaker 01:
Excuse me.

[00:03:35] Speaker 03:
Council, wait.

[00:03:37] Speaker 03:
You have a question.

[00:03:38] Speaker 03:
You have a question.

[00:03:39] Speaker 03:
Going back to Judge Prost's question, you're saying that small quantity alone doesn't necessarily make it aberrational.

[00:03:50] Speaker 03:
So what did you present as evidence to show it was aberrational other than the fact of the small quantity?

[00:03:57] Speaker 01:
We submitted three sets of information.

[00:03:59] Speaker 01:
We submitted domestic Thai invoices and price quotes from Thai producers of industrial nitrogen that totaled, that set of data totaled over 700,000 kilograms showing the price between 7 cents and 15 cents.

[00:04:14] Speaker 05:
That was non-public data, right?

[00:04:16] Speaker 01:
Well, the information was, it was not presented as confidential information, but it was not from a published public source.

[00:04:27] Speaker 01:
It was an actual invoice between

[00:04:29] Speaker 01:
domestic Thai parties.

[00:04:31] Speaker 05:
OK, we'll put that one aside.

[00:04:33] Speaker 05:
What are the other two?

[00:04:34] Speaker 01:
The other two are the US exports to Thailand.

[00:04:40] Speaker 01:
So Thailand reported its imports of nitrogen from the world.

[00:04:46] Speaker 01:
Trina provided US data that shows what were US exports to Thailand of nitrogen during the same period.

[00:04:54] Speaker 01:
And we provided a table at page 18

[00:04:59] Speaker 01:
reply brief showing that these data are irreconcilable where we presented the US export data to Thailand of nitrogen to show not that the US exports are another benchmark that commerce should consider but to show that Thailand's reporting that they only imported $95,000 of nitrogen during this period.

[00:05:21] Speaker 01:
But the US, I'm sorry, the US reported that it exported $95,000 of nitrogen

[00:05:28] Speaker 01:
and at nearly almost 600,000 kilograms.

[00:05:33] Speaker 01:
But for some reason, the tie data only shows 4,000 kilograms of imports and at $300,000 of value.

[00:05:42] Speaker 05:
So what did Commerce say about this?

[00:05:45] Speaker 01:
They said that they don't use export data as a benchmark.

[00:05:51] Speaker 01:
Well, our point is Commerce has to consider the record as a whole.

[00:05:57] Speaker 01:
They represented with evidence the Thai import data saying this represents Thai imports of nitrogen during this period.

[00:06:06] Speaker 01:
The US exports to Thailand that just did not reconcile to what Thailand said they were importing from the US.

[00:06:13] Speaker 01:
We had two data sets purporting to express the identical trade and even putting aside, you might expect some small differences.

[00:06:22] Speaker 01:
The differences here are so stark that you couldn't

[00:06:25] Speaker 01:
reasonably conclude that both data sets were correct.

[00:06:28] Speaker 05:
I don't understand how it can be the same trade, because in your own chart, the US data is for a quantity of 586,000, whereas the GTA data is for only 4,000.

[00:06:41] Speaker 05:
So the pricing can't be for the same quantities.

[00:06:47] Speaker 01:
Exactly.

[00:06:50] Speaker 01:
Something is wrong with one of those sets of data,

[00:06:55] Speaker 03:
Well, the problem is if something is wrong, even accepting your proposition, it doesn't tell us which one of these is correct.

[00:07:04] Speaker 01:
Well, and for that, I would say that the US price is $0.16 per kilogram.

[00:07:12] Speaker 01:
That corresponds very closely with all of the evidence on the record on what industrial nitrogen is valued at, putting aside the

[00:07:25] Speaker 01:
small quantity of imports into these other countries.

[00:07:28] Speaker 01:
Again, 99% of the information on the record, if we look at by quantity, 99% of the information on the record shows that the price is fairly low.

[00:07:41] Speaker 01:
It's somewhere in this 7 cents to 15, 16 cents per kilogram.

[00:07:46] Speaker 01:
And the tie data is showing this

[00:07:52] Speaker 01:
aberrationally high number for which the only corroborating evidence is this commerce used this bookend method to determine that the tie data was reliable.

[00:08:06] Speaker 03:
And so... Now you had in response to Judge O'Malley, I think you said you had three points.

[00:08:10] Speaker 03:
Was that number two?

[00:08:12] Speaker 03:
Do you have a third point?

[00:08:13] Speaker 01:
That was number two.

[00:08:13] Speaker 01:
And so number three is the import data into the other countries that commerce considers economically comparable to China in this case.

[00:08:22] Speaker 01:
So we provided a chart on page 12 of our reply brief that summarized all of the sources of information for valuing nitrogen.

[00:08:34] Speaker 01:
And so the import data into Bulgaria and Romania show large quantities of imports.

[00:08:42] Speaker 01:
Where there are large quantities of imports, the price into Bulgaria was 9 cents a kilogram, the price into Romania was 13 cents a kilogram.

[00:08:50] Speaker 01:
Where, and together,

[00:08:53] Speaker 01:
Those imports accounted for basically 99% of all the imports of all six countries.

[00:09:03] Speaker 01:
So the GTA data itself from all six countries corroborates those domestic prices that we were providing in Thailand.

[00:09:16] Speaker 01:
And commerce, they don't,

[00:09:22] Speaker 01:
They just say that's not how we look at it.

[00:09:24] Speaker 01:
We don't look at kind of look at everything and try to figure out among these six countries, what's the average price?

[00:09:31] Speaker 01:
They just say, we just have this bookend method.

[00:09:34] Speaker 01:
We say there's six countries, what is the range of prices?

[00:09:37] Speaker 01:
If it falls within the range, we say it's reasonable.

[00:09:40] Speaker 01:
And we put in our writing.

[00:09:46] Speaker 03:
I appreciate that.

[00:09:47] Speaker 03:
But before your time runs out, why don't you turn, is your second major issue about this zeroing?

[00:09:53] Speaker 05:
Yeah, so for when commerce... Before we go on to the zero end, could I ask one other question about your second source of data?

[00:10:02] Speaker 05:
Where does what you list is the USITC data web?

[00:10:06] Speaker 05:
What is that?

[00:10:07] Speaker 05:
Where did that information come from?

[00:10:10] Speaker 01:
That's US Census data that the US International Trade Commission makes available.

[00:10:17] Speaker 05:
How does it collect it?

[00:10:19] Speaker 01:
It's downloaded through the USITC data web.

[00:10:23] Speaker 01:
website, and it's collected by HTS number.

[00:10:27] Speaker 05:
Can I ask it by customs or what?

[00:10:30] Speaker 01:
Yes, technically I think it's US census data.

[00:10:35] Speaker 05:
What is census data?

[00:10:38] Speaker 01:
It's the record of US export of goods.

[00:10:43] Speaker 01:
It tracks both exports and imports of goods by HTS number, by ports of entry, and by trading partner or country of

[00:10:52] Speaker 01:
from import or country to export.

[00:10:55] Speaker 05:
Collected by customs.

[00:10:56] Speaker 01:
Correct.

[00:10:59] Speaker 01:
OK.

[00:10:59] Speaker 01:
So that's why I say we're talking about the same trade, because we're not using a search term for nitrogen or something.

[00:11:06] Speaker 01:
We're using the HTS number.

[00:11:08] Speaker 01:
And the HTS number is harmonized at this level of trade.

[00:11:11] Speaker 05:
Are you going on to the zeroing?

[00:11:14] Speaker 05:
Commerce says it doesn't make any difference.

[00:11:16] Speaker 05:
Why aren't they right about that?

[00:11:22] Speaker 01:
They do say it doesn't make any difference, but I would say it's still incorrect.

[00:11:28] Speaker 01:
At the agency level and at the court below, part of the argument was about, well, rounding explains this.

[00:11:36] Speaker 01:
And our argument is that even if we say instances where the quantity and the import data are zero, even if that is explained by rounding, it's still

[00:11:50] Speaker 01:
correct to exclude the value.

[00:11:52] Speaker 05:
Does it make a difference?

[00:11:55] Speaker 01:
It does make a difference because every time you exclude a quantity from the denominator and you're including a value in the numerator, you're always putting your thumb on the scale of increasing the price.

[00:12:08] Speaker 05:
No, but that's theoretical.

[00:12:10] Speaker 05:
As a practical matter, does it make a difference in the anti-dumping duty rate?

[00:12:17] Speaker 01:
It does.

[00:12:18] Speaker 01:
We wouldn't be here.

[00:12:19] Speaker 05:
Did you make it?

[00:12:23] Speaker 05:
Where in the record did you establish that it makes a difference?

[00:12:27] Speaker 01:
In terms of the impact, I don't know.

[00:12:31] Speaker 01:
I can't give you the exact impact here.

[00:12:34] Speaker 01:
And we didn't make that argument to the agency because we don't typically, the Commerce Department doesn't really kind

[00:12:44] Speaker 01:
confront issues that way to say, okay, well, by doing this, our margin was 6% the way with your method.

[00:12:51] Speaker 01:
If you change the method to exclude the zeros, the anti-dumping rate may drop to 5%.

[00:12:57] Speaker 01:
So we didn't present the information that way.

[00:13:00] Speaker 03:
And those are just like... Well, if I'm not incorrect, I think the government's brief at pages 22 and 23 does have some data.

[00:13:09] Speaker 03:
And I want to know if you disagree with that.

[00:13:12] Speaker 03:
That's where they say,

[00:13:13] Speaker 03:
The total value of import quantities represents only 0.005% of the total value of all data points.

[00:13:22] Speaker 03:
Are you familiar with the argument they're making?

[00:13:24] Speaker 03:
And I just wondered if you had any... That was their... That's those... They gave data as to why this is, to Judge Dike's point, has no real relevance.

[00:13:37] Speaker 03:
What's your response to what they came up with?

[00:13:41] Speaker 01:
So our point is it's incorrect.

[00:13:43] Speaker 01:
If we're saying, yes, it moves the needle by a small amount, I would agree.

[00:13:48] Speaker 01:
And that in a lot of the trade cases before Commerce and the Court of National Trade and this court, it may not be, the value of trade may not be significant enough to litigate an issue that might have a tenth of a percent or a hundredth of a percent of difference in the result.

[00:14:08] Speaker 01:
Here, if it's incorrect, does it matter whether it's a feather on the scale, a thumb on the scale, that's systematically increasing surrogate values?

[00:14:17] Speaker 01:
When it's mathematically incorrect to include the value in the numerator, when

[00:14:26] Speaker 01:
the quantity or the denominator is zero.

[00:14:29] Speaker 01:
If we're thinking about a weighted average.

[00:14:31] Speaker 05:
Article III courts are allergic to deciding hypothetical cases and the government's basically saying this is a hypothetical case, it's not a real world case in this respect.

[00:14:47] Speaker 01:
I would say in this case, this approach systematically increased.

[00:14:51] Speaker 01:
the surrogate values applied to Trina's imports or to Trina's factors of production.

[00:14:56] Speaker 01:
And yes, the impact on a percent basis is small, but it's still incorrect.

[00:15:05] Speaker 03:
Well, the other problem I have is I understand your alternative proposal to also not be entirely correct and to sometime lead to a degree of undervaluation.

[00:15:17] Speaker 03:
So in a situation where any choice is

[00:15:20] Speaker 03:
arguably imperfect.

[00:15:23] Speaker 03:
And the government has demonstrated that its imperfect choice of two imperfect choices doesn't matter anyway.

[00:15:32] Speaker 03:
What's wrong with that?

[00:15:34] Speaker 01:
I would say what's wrong with that is that if we round a number to zero, if we're calculating a weighted average, what should the weight of the value associated with that quantity be given?

[00:15:49] Speaker 01:
If it were 1, it would be given a weight of 1.

[00:15:52] Speaker 01:
If it were 2, when we're calculating the weighted average, it would be given a weight of 2.

[00:15:55] Speaker 01:
In this case, it was rounded to 0.

[00:15:58] Speaker 01:
That value should be given a weight of 0.

[00:16:00] Speaker 01:
It shouldn't factor into this weighted average calculation.

[00:16:04] Speaker 01:
If I can finish that thought and if there are any other questions, I guess.

[00:16:15] Speaker 03:
Well, you can finish one sentence.

[00:16:17] Speaker 03:
Give us a sentence, but then we're going to move on and reserve your rebuttal time.

[00:16:21] Speaker 03:
You have one more sentence to conclude the thought.

[00:16:26] Speaker 01:
Our argument is really that this is just mathematically incorrect, regardless of the impact.

[00:16:33] Speaker 03:
All right.

[00:16:34] Speaker 03:
Thank you.

[00:16:36] Speaker 03:
Mr. Brightbittle?

[00:16:39] Speaker 04:
Yes, Your Honor.

[00:16:40] Speaker 04:
Good morning and may it please the court?

[00:16:44] Speaker 04:
Tim Brightville on behalf of Solar World Americas.

[00:16:47] Speaker 04:
We have two affirmative issues.

[00:16:50] Speaker 04:
I'll spend most of my time on tempered glass.

[00:16:53] Speaker 04:
And the second affirmative issue is with respect to back sheet valuation.

[00:16:59] Speaker 03:
And these are designated as cross, this is designated as a cross appeal, right?

[00:17:05] Speaker 03:
That's correct, Your Honor.

[00:17:07] Speaker 03:
Okay, thank you.

[00:17:08] Speaker 04:
Commerce has made two incorrect and unreasonable decisions with respect to factors of production in this case.

[00:17:16] Speaker 04:
Both are unsupported by substantial evidence and, in fact, are contradicted by compelling record evidence.

[00:17:23] Speaker 04:
The first is on tempered glass.

[00:17:26] Speaker 04:
In this situation, the Court of International Trade committed error in twice remanding Commerce's selection of a surrogate value

[00:17:36] Speaker 04:
for respondent English tempered glass inputs based on Thai import data and this forced Commerce under protest to instead value the glass using Bulgarian data.

[00:17:49] Speaker 04:
Commerce fully analyzed this issue in its final results in the review and further in its first remand results and both times it appropriately determined that the Thai surrogate value for tempered glass was not aberrational

[00:18:05] Speaker 04:
based on substantial record evidence and consistent with its past practice.

[00:18:10] Speaker 04:
So we have three main points.

[00:18:12] Speaker 03:
Excuse me, Council.

[00:18:13] Speaker 03:
Council, isn't the question really not whether the first use of the TIE data would have been acceptable, but whether the ultimate data selected is aberrational?

[00:18:27] Speaker 03:
So in other words, we're not supposed to decide whether there shouldn't have been a remand in the first instance if

[00:18:34] Speaker 03:
the ultimate conclusion reached falls within a category of not being aberrational.

[00:18:43] Speaker 04:
Well, Your Honor, given what Commerce did under protest, we think it's both correct that what Commerce ultimately did when directed to by the court was not reasonable and we'll go into why.

[00:19:03] Speaker 04:
and why its first choice was reasonable and consistent with its practice.

[00:19:10] Speaker 04:
So first, Commerce is finding that the tie average unit value was not aberrational, was consistent with its practice.

[00:19:20] Speaker 04:
And second, when determining whether an average unit value is aberrational, Commerce considers the overall average unit value.

[00:19:29] Speaker 04:
It does not pick and choose values

[00:19:32] Speaker 04:
for individual imports within a surrogate country's import AUV.

[00:19:37] Speaker 04:
And that's what the court had asked Commerce to do, which was incorrect.

[00:19:43] Speaker 04:
And third, even if Commerce were to disregard its practice of evaluating these unit values in the aggregate, the individual prices imported from Hong Kong into Thailand were not aberrational.

[00:19:57] Speaker 03:
So I'd like to go to... With respect to the question of what Commerce is

[00:20:02] Speaker 03:
practice was, I thought that the court specifically found that Commerce didn't establish that it had a current practice of determining aberrationality based on overall import value.

[00:20:14] Speaker 04:
Well, Your Honor, Commerce does have an established practice, and as was discussed earlier with respect to a different surrogate value, just because a price is higher than others does not make it aberrational.

[00:20:28] Speaker 04:
So what Commerce does is two things.

[00:20:30] Speaker 04:
First, it looks at

[00:20:32] Speaker 04:
import values for the same harmonized tariff schedule number from the other potential surrogate countries in a given case.

[00:20:40] Speaker 04:
And second, it looks at the data from the same tariff schedule number for the same surrogate country, in this case Thailand, over multiple years.

[00:20:51] Speaker 04:
And Commerce followed that practice in the underlying review.

[00:20:55] Speaker 04:
It selected the value from Thailand, which was the primary surrogate country in the review,

[00:21:00] Speaker 04:
and commerce has a strong interest in gathering all the values from the same surrogate country.

[00:21:06] Speaker 04:
It then looked at the average unit value of $4.14 and the import quantity, which was more than 2 million kilograms, and found that that fell within the range of data from all of the countries on the surrogate country list.

[00:21:23] Speaker 04:
In fact, the high average unit value of $4.14

[00:21:28] Speaker 04:
was not even the highest of the four countries on the surrogate country list for which data was available.

[00:21:34] Speaker 05:
Commerce also.

[00:21:35] Speaker 05:
Where do we find that Commerce has addressed this point that led to the first remand about the inclusion of the Hong Kong data?

[00:21:47] Speaker 05:
Which, as I recall, the Court of International Trade said was the problem with the calculation.

[00:21:55] Speaker 04:
Sure.

[00:21:56] Speaker 04:
So, Your Honor, the point I was just discussing where they looked at all the countries, you see that in the decision memo at, which is at Appendix 720.

[00:22:04] Speaker 04:
Now, with regards to the Hong Kong data, Commerce clearly explained that its practice is to consider the overall average unit value and not pick it apart and not look at whether or not the Hong Kong value was

[00:22:24] Speaker 04:
aberrational for some reason or any other countries was.

[00:22:27] Speaker 05:
Where did it say that?

[00:22:30] Speaker 04:
Sure.

[00:22:31] Speaker 04:
So they explained, they cited their practice in the wood flooring case and it's discussed, cited at Appendix 761 is the wood flooring issue and decision memo.

[00:22:50] Speaker 05:
Basically, they say that... I'm not looking for the wood flooring decision.

[00:22:53] Speaker 05:
I'm looking for the decision memo here which addresses this particular point and explains why what they did was correct.

[00:23:02] Speaker 05:
After the remand, you say they made the change under protest.

[00:23:06] Speaker 05:
Did they explain in that decision memo why what the CIT required was wrong?

[00:23:16] Speaker 04:
Your Honor, they explained in...

[00:23:19] Speaker 04:
When they analyzed the Hong Kong data, they explained at the decision memo, their decision memo at Appendix 721 that the imports from Hong Kong into Thailand were more than 38,000 kilograms, which means it was one of the largest sources.

[00:23:37] Speaker 04:
And at the same page, Appendix 721, they explained that the prices of tempered glass inputs from Hong Kong into Thailand were relatively high but not aberrationally high.

[00:23:49] Speaker 04:
and in fact that the imports from the Netherlands and the United States entered Thailand at even higher prices than the Hong Kong imports.

[00:23:58] Speaker 04:
So they addressed both of the reasons why the Hong Kong data was not aberrational and why they didn't pick it out of all the other countries that set into the Thai import value.

[00:24:13] Speaker 04:
And fundamentally, commerce has substantial discretion

[00:24:17] Speaker 04:
in selecting the best available information to serve as a surrogate value.

[00:24:21] Speaker 04:
This court has ruled that, of course, in the down-hold pipe case and in the QVD food cases that we cite in our brief.

[00:24:29] Speaker 04:
And there are good reasons for that discretion.

[00:24:31] Speaker 03:
So the commerce... Doesn't that substantial discretion also apply to the ultimate determination?

[00:24:40] Speaker 03:
In other words, we have to give them discretion to choose the Bulgarian import data as well, right?

[00:24:48] Speaker 04:
Well, you could, again, I think there is less reason to give discretion when they twice tried to rule in terms of using Thailand which was the primary surrogate country and because you don't have perfect data from any country, Commerce has this regular practice of using one primary surrogate country for the review and that's what they did here.

[00:25:15] Speaker 05:
So my recollection is that we have cases that address the issue that Judge O'Malley is talking about.

[00:25:22] Speaker 05:
And if my recollection is correct about that, unless Commerce agrees that it made an error the first time around, that you can challenge the Court of International Trade's remand decision.

[00:25:39] Speaker 05:
Is my recollection about that correct or not?

[00:25:42] Speaker 05:
Are you familiar with those cases?

[00:25:45] Speaker 04:
Your Honor, I think you're correct.

[00:25:47] Speaker 04:
I don't have those right here in front of me, but I think certainly the fact that Commerce made its ruling under protest means that what the lower court did should be very closely scrutinized here.

[00:26:00] Speaker 04:
So turning very briefly to the second argument that we had with respect to backsheet, here we believe that the court

[00:26:11] Speaker 04:
erroneously upheld Commerce's selection of a surrogate value for backsheet inputs.

[00:26:17] Speaker 04:
What Commerce used were two harmonized tariff schedules numbers that represent a very broad oversimplification of a highly technical engineered set of goods that go into backsheet.

[00:26:32] Speaker 04:
Commerce simply chose the categories based on the primary material in each respondents backsheet

[00:26:40] Speaker 04:
But it ignored the critical context here at the fact that solar panels were manufactured and certified to survive in operating conditions when they're exposed to the elements.

[00:26:52] Speaker 05:
You had no HTS category for these particular backsheets, right?

[00:26:57] Speaker 04:
Well, there's none that is specific to backsheet.

[00:27:00] Speaker 04:
But we did recommend an alternative, which was an other plastic category, which would have more accurately captured that there are multiple plastics

[00:27:10] Speaker 04:
going into Tabachi.

[00:27:15] Speaker 03:
That category is very highly general and right.

[00:27:21] Speaker 03:
I mean, it's a very general category.

[00:27:23] Speaker 03:
Other plastics in cheap form, is that the one you propose?

[00:27:26] Speaker 04:
That's right, Your Honor.

[00:27:27] Speaker 04:
It is more general, but because of the fact that several plastics went into this, it would have been more accurate to use that general category than

[00:27:38] Speaker 04:
just a category for the one material in each of the batches.

[00:27:44] Speaker 04:
With that, unless there are other questions, I'll hold for rebuttal.

[00:27:47] Speaker 04:
Thank you.

[00:27:47] Speaker 04:
Thank you.

[00:27:51] Speaker 03:
Ms.

[00:27:52] Speaker 03:
Ogan, you're up next.

[00:27:55] Speaker 00:
Good morning, Your Honors.

[00:27:56] Speaker 00:
May you please support?

[00:27:58] Speaker 00:
The United States is here to defend the trial court's judgment with respect to

[00:28:05] Speaker 00:
the issues of the surrogate value selection for nitrogen, the use of zero-quantity import data, and the surrogate value selection for backsheets.

[00:28:15] Speaker 00:
So I will address those issues in the order in which they've been presented.

[00:28:20] Speaker 00:
We are not appealing... Let me just be clear.

[00:28:22] Speaker 03:
Yes.

[00:28:23] Speaker 03:
That's what my question was about the other... Yes.

[00:28:26] Speaker 00:
To be clear, we did not appeal the

[00:28:30] Speaker 00:
the judgment with respect to the tempered glass surrogate value selection that was made under protest on remand.

[00:28:38] Speaker 00:
And we are not defending this aspect of the court's judgment on appeal either.

[00:28:43] Speaker 05:
So with respect to the back sheets, you have now adopted as a result of the remand a new approach, which you're defending.

[00:28:52] Speaker 05:
So to Judge O'Malley's point,

[00:28:55] Speaker 05:
With respect to the backsheets, we should look to your current decision to see whether there was an abuse of discretion.

[00:29:01] Speaker 05:
Is that correct?

[00:29:03] Speaker 00:
No, Your Honor.

[00:29:04] Speaker 00:
The backseat issue was decided, was sustained by the CIT in the first instance.

[00:29:10] Speaker 00:
It was not remanded.

[00:29:11] Speaker 00:
The only issue that we are defending that was remanded was the issue of the zero quantity data use.

[00:29:20] Speaker 00:
And in that circumstance, Commerce simply provided additional explanation for why it

[00:29:25] Speaker 00:
It did what it did.

[00:29:27] Speaker 00:
It did not change its position on remand.

[00:29:34] Speaker 05:
So there was no remand on the back sheet?

[00:29:37] Speaker 00:
Correct.

[00:29:41] Speaker 02:
Okay.

[00:29:43] Speaker 00:
So starting with the issue of the surrogate value selection for nitrogen, we believe that substantial evidence supports commerce of selection.

[00:29:51] Speaker 00:
Trina does not dispute that the tie data that was selected otherwise met the regulatory criteria for selection assertive value.

[00:29:59] Speaker 00:
That is, it was publicly available.

[00:30:01] Speaker 00:
It represented a broad market average and was specific to the input in question.

[00:30:07] Speaker 00:
In essence, Trina asks this court or asks the trial court to substitute its own methodology for that selected by commerce.

[00:30:16] Speaker 00:
And that is not the role of the reviewing court.

[00:30:19] Speaker 00:
I think it's also important to recognize that what commerce is trying to achieve here is not to corroborate Trina's purchase price or to construct a global average.

[00:30:31] Speaker 00:
It's trying to ascertain what the surrogate cost is in the surrogate country, that is Thailand.

[00:30:38] Speaker 00:
And so commerce did follow its practice for evaluating whether Thai import data was aberrational.

[00:30:46] Speaker 00:
where the TIE import data fell within the range of all the other economically comparable countries.

[00:30:53] Speaker 05:
Yeah, but what about the table that they have on page 18 of the reply brief with respect to the TIE data, which they say calls into question the accuracy of the TIE data itself because they say that it can't be consistent.

[00:31:11] Speaker 05:
And I don't see that commerce really addressed this inconsistency in its decision.

[00:31:18] Speaker 00:
So this is the US international trade export data.

[00:31:25] Speaker 00:
And I think what we would say about this, what the trial court said is that trying to compare or use export data to call into question import data is comparing apples to oranges.

[00:31:40] Speaker 00:
We don't know how

[00:31:41] Speaker 00:
We can't assume that the data is being collected in the same way or being accounted for in the same way.

[00:31:48] Speaker 00:
And so on page 58 of the appendix, this is the trial courts.

[00:31:55] Speaker 00:
I'm sorry, page 59.

[00:31:58] Speaker 00:
The trial court explained that the reported US export value does not demonstrate that the choice to use TIE import data is unsupported by substantial evidence.

[00:32:10] Speaker 05:
I think one other important point about this is that what... Yeah, but the problem that I'm asking about is I don't see that commerce ever told us why these two sets of data are reconcilable.

[00:32:26] Speaker 05:
The argument was that they're irreconcilable, and I don't see where commerce has told us why we shouldn't be concerned about that.

[00:32:36] Speaker 00:
I think probably the closest part is

[00:32:39] Speaker 00:
On page 745 of the appendix in the decision memorandum, Commerce explains that its preference is to use non-export data.

[00:32:56] Speaker 00:
And so using export, I'm sorry, yes.

[00:32:59] Speaker 00:
So using export data to call into question import data, as the trial court explained, it's reasonably discernible.

[00:33:08] Speaker 00:
that commerce would not consider export data to be a measure against which to assess the reliability of import data.

[00:33:15] Speaker 05:
And I think the problem is it doesn't say why.

[00:33:21] Speaker 00:
Well, I think why is because, again, we're trying to achieve comparisons that are, you know, apples to apples, right?

[00:33:33] Speaker 00:
So that's why it makes sense to compare

[00:33:35] Speaker 00:
GTA import data from Thailand against GTA import data from other economically comparable countries.

[00:33:42] Speaker 00:
It makes less sense to look at one particular data point export data from the US and to use that to compare one data point in the GTA import data, that is imports from the United States into Thailand, that also doesn't address whether the remainder of the data that comprises that

[00:34:05] Speaker 00:
total GTA import data from Thailand is unreliable because there's other imports from other countries.

[00:34:20] Speaker 03:
But Trina said that you use the same categories to calculate the export data and the import data.

[00:34:29] Speaker 03:
So why doesn't that indicate that it's not really apples to oranges?

[00:34:37] Speaker 00:
Well, again, we don't know how the data is collected, or we can't assume that the data is collected in the same way for the, for GTA, which is a private service that commerce has a lot of experience with compared to the ITC data web information, which is collected from customs reporting in the United States.

[00:35:01] Speaker 00:
So again, even if it's the same ATCS categories,

[00:35:04] Speaker 00:
We don't know how the data itself is collected.

[00:35:07] Speaker 00:
And so the more reasonable comparisons and the comparison that is the methodology that commerce has is to compare import data to other import data when assessing whether a particular data can be used or is unreliable.

[00:35:31] Speaker 05:
This first line about USIPC data web

[00:35:34] Speaker 05:
That is for Thai data, right?

[00:35:38] Speaker 00:
That is, my understanding of that is exports from the United States into Thailand.

[00:35:44] Speaker 05:
And these, the data here can't be, both sets of data can't be correct, right?

[00:35:58] Speaker 00:
I mean, probably not.

[00:36:01] Speaker 00:
Correct.

[00:36:02] Speaker 00:
Yeah.

[00:36:04] Speaker 00:
But that doesn't necessarily require that commerce not use the GTA import data.

[00:36:13] Speaker 00:
Even if those can't be reconciled, again, I think the way that they can't, the explanations for why they can't be reconciled, we don't necessarily have that on the record.

[00:36:31] Speaker 00:
But that doesn't mean that the GTA import data for Thailand is unreliable.

[00:36:37] Speaker 00:
It might be that the ITC data is unreliable.

[00:36:42] Speaker 00:
It might be that the reporting methodologies are entirely different.

[00:36:47] Speaker 00:
We just don't know.

[00:36:49] Speaker 00:
And in light of that, it was not unreasonable for commerce to continue to use its own well-established practice

[00:36:59] Speaker 00:
and not to depart from its chosen methodology.

[00:37:04] Speaker 00:
Given the overall fact based on its normal test that the GTA import data that it did select and it did use fell within the bookend of import data from other economically comparable countries.

[00:37:26] Speaker 00:
With respect to the second issue on appeal, Commerce's use of import data with positive values but zero quantities.

[00:37:34] Speaker 00:
Again, Commerce provided a reasonable explanation on remand for why this data was usable.

[00:37:40] Speaker 00:
I think just to answer the questions that the court had for Mr. Fried, as a practical matter, it is correct and Commerce did find that there's no

[00:37:54] Speaker 00:
there's very little impact in commerce's use of this data.

[00:38:00] Speaker 00:
And to be more specific on page 794 of the appendix, on remand commerce went through a number of tests and analyses of this data and concluded that if it were to take out the zero quantity data points, it would make almost no difference in the AUV.

[00:38:20] Speaker 00:
For example, so there were 76 different HTS categories that Commerce used to calculate the factors of production in this case.

[00:38:30] Speaker 00:
For 70 out of the 76, taking out the zero quantity data points made no difference to the average unit value.

[00:38:39] Speaker 00:
For four of the 76 categories, there was a difference of 1%.

[00:38:45] Speaker 00:
And for the remaining two categories,

[00:38:47] Speaker 00:
there was a difference of 2 and 5%.

[00:38:49] Speaker 00:
So overall, when you look at all of the 76 categories, there was an overall difference of 0.16%.

[00:38:58] Speaker 00:
So it is a very small effect on the overall data.

[00:39:03] Speaker 00:
And in light of that, the overarching goal that commerce has to use a broad market average is accomplished by continuing to keep this data

[00:39:15] Speaker 00:
in the data set, in the calculations because commerce was satisfied that the data represented rounding down as opposed to error in reporting or otherwise, which might otherwise be a reason to remove this data from the data set.

[00:39:37] Speaker 03:
If it's mathematically incorrect and it does skew the numbers to any extent,

[00:39:45] Speaker 03:
Why shouldn't we say, well, this is just not an appropriate methodology, and it may not make a huge difference in this case, but it could make a huge difference in some other case, and so commerce shouldn't keep engaging in this kind of practice?

[00:40:05] Speaker 00:
Well, we disagree that it's incorrect as a mathematical error.

[00:40:10] Speaker 00:
So I think that would be our first

[00:40:12] Speaker 00:
our first response.

[00:40:13] Speaker 00:
But even if, I think the burden is to show that the commerce's methodology is unreasonable, not just that there might be another way or even possibly a better way.

[00:40:25] Speaker 00:
The burden is on Trina to show that this methodology is contrary to law and it hasn't.

[00:40:33] Speaker 00:
The overarching methodology is to keep the data sets as a whole and not to start cherry picking out data which is going to make the overall

[00:40:41] Speaker 00:
calculation less reliable and less accurate.

[00:40:47] Speaker 00:
So Commerce went through this process to demonstrate that these instances of zero quantity data aren't random error.

[00:40:56] Speaker 00:
They do represent real imports.

[00:40:59] Speaker 00:
And so in light of the fact that it does represent real imports, it is reasonable for Commerce to continue to use this data in its calculations.

[00:41:09] Speaker 05:
What is the numerator and what's the denominator?

[00:41:12] Speaker 05:
I think the briefs are not very clear about how this computation is made.

[00:41:17] Speaker 00:
Right.

[00:41:18] Speaker 00:
I mean, the numerator would be the sum of the quantities, and the denominator would be the sum of the value

[00:41:39] Speaker 00:
Let me make sure that I've said that correctly.

[00:41:41] Speaker 00:
Right, I believe that's correct.

[00:42:02] Speaker 05:
Say it again, the numerator is what?

[00:42:06] Speaker 00:
The numerator is the,

[00:42:11] Speaker 00:
The numerator is the quantity.

[00:42:14] Speaker 05:
I thought the quantity was the denominator and that they were saying that the zero quantity should be excluded, was excluded.

[00:42:24] Speaker 00:
I'm sorry, you are correct, Your Honor.

[00:42:25] Speaker 00:
I had my fractions confused.

[00:42:29] Speaker 05:
So the numerator are the prices, the aggregate prices for each transaction.

[00:42:37] Speaker 00:
I believe that's correct, Your Honor.

[00:42:39] Speaker 05:
And the denominators are the quantity?

[00:42:46] Speaker 00:
Correct.

[00:42:47] Speaker 05:
So the effect of this is that you have a price for these zero transactions in the numerator and no quantity in the denominator.

[00:42:58] Speaker 00:
Right.

[00:42:58] Speaker 00:
Although what you're looking at is, of course, the overall

[00:43:06] Speaker 00:
instances of imports in a particular HTS category.

[00:43:09] Speaker 00:
So for most of these HTS categories, you have more than one import, right?

[00:43:18] Speaker 00:
You have a number of imports.

[00:43:21] Speaker 00:
And so the sum of however many imports in that particular category is being aggregated.

[00:43:45] Speaker 00:
Anything else?

[00:43:47] Speaker 00:
No, I'll move to backsheets, which I think we can just address very briefly.

[00:43:54] Speaker 00:
As Fuller World admits, there wasn't a surrogate value available on the record that was specific to the respondents' backsheets.

[00:44:06] Speaker 00:
And in light of that, it was reasonable for Commerce to select the HTS category covering the type of plastic that most closely corresponds

[00:44:14] Speaker 00:
to the respondents' back sheets.

[00:44:17] Speaker 00:
And Commerce did consider the HTS category that Solar World proposed on page 728 of the appendix, which that category covered plastics not elsewhere specified.

[00:44:31] Speaker 00:
Commerce concluded that that, in fact, would be less specific because it wouldn't encompass plastics that were the PET and the EVA that the respondents actually used.

[00:44:44] Speaker 00:
In the absence of anything more specific, Commerce's selection was reasonable and Commerce is not required to, again, construct something different.

[00:44:58] Speaker 00:
It has to use the information that's available on the record.

[00:45:01] Speaker 00:
It did so in the fact that the selection might be imperfect, as this court has said, and how Meridian does not render the selection unreasonable.

[00:45:13] Speaker 03:
Okay, thank you.

[00:45:15] Speaker 03:
Thank you.

[00:45:15] Speaker 03:
Mr. Ellis, are you with us?

[00:45:18] Speaker 06:
Yes, I am, Your Honor.

[00:45:19] Speaker 06:
Good morning.

[00:45:20] Speaker 06:
Can you all hear me, I hope?

[00:45:23] Speaker 06:
Yes.

[00:45:24] Speaker 06:
Okay.

[00:45:25] Speaker 06:
Thank you.

[00:45:26] Speaker 06:
For the record, my name is Neil Ellis from Sidley Austin on behalf of the Ying Li Companies.

[00:45:32] Speaker 06:
And to be clear, we are just at the leaves or cross at the leaves, I suppose.

[00:45:39] Speaker 06:
regarding two issues that were raised by SolarWorld in this case, the tempered glass evaluation and backsheet evaluation.

[00:45:50] Speaker 06:
And I'd like to focus primarily on tempered glass issue since the United States is not defending that.

[00:45:58] Speaker 06:
I'm the only party on the other side of that issue who will be talking today about that issue, I believe.

[00:46:06] Speaker 06:
And I want to start with a

[00:46:08] Speaker 06:
Addressing one of the questions that I think Judge O'Malley, I'm sorry, Judge Prost started, but then the rest of you also joined in in addressing counsel for appellant, which is what is the standard of review here, which is obviously an important issue.

[00:46:25] Speaker 06:
And I have to apologize.

[00:46:26] Speaker 06:
I think the briefs were not quite right on that issue.

[00:46:32] Speaker 06:
As Judge Prost said, the

[00:46:36] Speaker 06:
Substantial evidence test only goes to the final decision by the agency, that is, was the adoption by the agency of Bulgarian surrogate value in this case supported by substantial evidence.

[00:46:51] Speaker 06:
The prior decisions by the Court of International Trade remanding, this court has noted in the clearest explication of it is in the Altex ALTX in case versus United States.

[00:47:05] Speaker 06:
370 F3rd 1108, where it explained, you explained that, where there are remands that are not kind of compelling an outcome, but, or saying that the determination by the agency was unsupported by substantial evidence, but is simply seeking clarification or further explanation.

[00:47:25] Speaker 06:
In that instance, this court applies an abusive discretion standard.

[00:47:31] Speaker 06:
And I submit that that is in fact the situation we have here.

[00:47:34] Speaker 06:
Judge Kelly at the trade court was very clear on both of her remands that she wasn't finding anything or concluding anything.

[00:47:43] Speaker 06:
She simply noted that there was some ambivalence or internal contradictions within the department's determinations, both the initial final determination and the first remand determination.

[00:47:57] Speaker 06:
that required further explanation so that she could have an understanding of what the department's practice or policy really is in this case.

[00:48:08] Speaker 06:
And so, under an abuse of discretion standard.

[00:48:11] Speaker 05:
I thought the result of this was telling Commerce that it had a problem with including the Hong Kong imports or exports into Thailand.

[00:48:28] Speaker 06:
She would know, Your Honor, without due respect.

[00:48:30] Speaker 06:
She never said that you can't do this.

[00:48:34] Speaker 05:
Where do we find Commerce's remand decision about the tempered glass?

[00:48:44] Speaker 06:
The remand decision by Commerce, it is in the JA

[00:48:55] Speaker 06:
at page 770.

[00:48:57] Speaker 06:
It starts at 773.

[00:49:05] Speaker 06:
And in the first remand, which is what I think you're referring to, the department goes on at length and explains that it doesn't have a policy.

[00:49:15] Speaker 06:
Well, first, it confessed error, in effect, in its initial determination, which in effect suggests that the Court of National Trade was right to remand it the first time.

[00:49:25] Speaker 06:
Because the agency said, we don't consider individual values that go into the surrogate country's overall aggregate value.

[00:49:37] Speaker 06:
But it cited some decisions where that's exactly what the department did in the past.

[00:49:41] Speaker 06:
So the department said, whoops, those are no longer a good law.

[00:49:46] Speaker 06:
What we do now is under wooden flooring.

[00:49:50] Speaker 06:
But as the court noted, that was in the first remand.

[00:49:53] Speaker 06:
But what the Court of International Trade noted was, in fact, it was important that the department did exactly that once again.

[00:50:00] Speaker 05:
So where do we find the final decision after the second remand, which addresses this issue?

[00:50:10] Speaker 06:
Unfortunately, there's just a couple of pages of that.

[00:50:14] Speaker 06:
The department's final remand, the second remand decision, is in Appendix 6502.

[00:50:21] Speaker 06:
In 6516, there's just two pages.

[00:50:24] Speaker 06:
And there it says, we have determined under protest to value the English tempered glass using Bulgarian AUVs rather than Thai.

[00:50:34] Speaker 06:
So the department stopped trying to articulate its standard and instead said simply, we're going to go to Bulgaria and avoid this whole problem.

[00:50:48] Speaker 06:
And nobody had challenged the

[00:50:51] Speaker 06:
validity of the Bulgarian data.

[00:50:53] Speaker 06:
That is, there was no suggestion that it was not supported by substantial evidence, which implies that... But then the commerce would have done it differently, but for the remand, right?

[00:51:06] Speaker 06:
Sure.

[00:51:06] Speaker 06:
That's right.

[00:51:07] Speaker 06:
There's a but-for there, but it's not being compelled by the court.

[00:51:11] Speaker 06:
The court was very careful to make clear it was not compelling anything.

[00:51:15] Speaker 06:
It just wanted an explanation.

[00:51:18] Speaker 06:
The problem is that I think, Your Honor, this case may just be an outlier on this issue, because if you look even at the cases cited in the reply brief by Solar World to this Court, it cites some more recent cases, laminated sacks, and in both of those cases, the Department

[00:51:43] Speaker 06:
did the same thing.

[00:51:44] Speaker 06:
It said, look, our general practice is to look at a single aggregate surrogate value.

[00:51:51] Speaker 06:
And we recognize that.

[00:51:55] Speaker 06:
But the department never foreclosed itself from considering individual unit values that would be aberrational.

[00:52:03] Speaker 06:
And in fact, Inline Minuted Sachs specifically looked at those.

[00:52:06] Speaker 06:
It rejected the argument that they were aberrational.

[00:52:10] Speaker 06:
But it considered the issue.

[00:52:12] Speaker 06:
Our case is the only one, I think, where the department said, we don't have to consider this issue.

[00:52:17] Speaker 06:
We just look at aggregate data, period, and gave some reasons why they didn't have to.

[00:52:23] Speaker 06:
So we submit that the court below was right under the abuse of discretion standard, asked for further clarification.

[00:52:31] Speaker 06:
And then the department was right.

[00:52:32] Speaker 06:
Ultimately, it was supported by substantial evidence when it adopted the Bulgarian alternative surrogate.

[00:52:40] Speaker 06:
I'd like, unless there are more questions on the glass issue, I do want to just touch on back sheet.

[00:52:48] Speaker 06:
Just two points.

[00:52:51] Speaker 06:
One is that the alternative, the, oh sorry, I will stop there.

[00:52:58] Speaker 06:
Everything is out, rest on my brief.

[00:52:59] Speaker 06:
Thank you.

[00:53:00] Speaker 06:
Thank you very much, Your Honor.

[00:53:02] Speaker 03:
Thank you.

[00:53:03] Speaker 03:
Thank you.

[00:53:04] Speaker 03:
Mr. Freed, we're back to you for rebuttal.

[00:53:09] Speaker 01:
Thank you, Your Honor.

[00:53:10] Speaker 01:
I will speak briefly on backsheet.

[00:53:15] Speaker 01:
With respect to Trina... Wait a minute.

[00:53:20] Speaker 03:
I'm sorry.

[00:53:21] Speaker 03:
Mr. Fried, I thought you were doing response to what was your initial appeal?

[00:53:26] Speaker 01:
It's a bit confusing because I am both responding to Solar World's arguments with regard to the backsheet circuit value and I'm also

[00:53:36] Speaker 01:
of rebutting the responses to our arguments on nitrogen and the zero quantity in the imports.

[00:53:43] Speaker 03:
Well, can you tell me how much of your five minutes left you're dividing to those just so I can keep track?

[00:53:49] Speaker 01:
I'll try to keep the back sheet comment just to one minute.

[00:53:53] Speaker 03:
All right.

[00:53:53] Speaker 01:
Okay.

[00:53:56] Speaker 03:
Which I think gives the... Okay, go ahead.

[00:53:59] Speaker 01:
Okay.

[00:54:00] Speaker 01:
And thank you, Your Honor.

[00:54:02] Speaker 01:
First, SolarWorld

[00:54:04] Speaker 01:
They cite to Trina's market purchases to say that the market purchases, those imported into China from market economy countries, the price Trina paid was much higher for its backsheets than the certain numbers applied to it.

[00:54:21] Speaker 01:
First, the import confirms that the HTS category 392062 is the correct classification for backsheets.

[00:54:33] Speaker 01:
Two, the world overlooked that those imports represented only 0.3% of the total quantity of the quantity of backsheet purchased by Trina during the period.

[00:54:46] Speaker 01:
So you can't, by commerce regulation, they don't impute those purchases as representative of all of Trina's purchases or consumption of backsheet.

[00:54:57] Speaker 01:
So commerce has followed its practice.

[00:55:00] Speaker 01:
There's no reason to.

[00:55:01] Speaker 01:
for its decision was reasonable.

[00:55:04] Speaker 01:
One point that Solar World makes is they say that we're not presenting Trina's market purchases as a substitute.

[00:55:12] Speaker 01:
We're saying it's probative evidence that has to be considered and has to inform the decision.

[00:55:17] Speaker 01:
This is kind of a transition to my point, which is in the same arguments were made with regard to the nitrogen information that Trina submitted.

[00:55:30] Speaker 01:
where Trina submitted the domestic prices for nitrogen within Thailand.

[00:55:39] Speaker 01:
And those were dismissed because they're not commerce's preferred source for surrogate values because they aren't as publicly available or broad market as other sources of data.

[00:55:53] Speaker 01:
But we cite in our brief at footnote 30

[00:55:56] Speaker 01:
fish fillet case where commerce, they do use price quotes and invoices as surrogate values.

[00:56:01] Speaker 01:
So they can't just be dismissed.

[00:56:06] Speaker 01:
That's the first set of facts that were dismissed by the agency in the lower court.

[00:56:14] Speaker 01:
The second point, the US ITC data web data versus the GTA data, if we don't know

[00:56:26] Speaker 01:
which one is correct, then what do we do?

[00:56:29] Speaker 01:
We can look to the record and see which ones are more in line with other record data.

[00:56:34] Speaker 01:
And the U.S.

[00:56:35] Speaker 01:
price is in line with 99% of the record data.

[00:56:39] Speaker 01:
And so commerce should have resolved that question.

[00:56:41] Speaker 01:
Instead, they said, we don't like to use exports for certain values.

[00:56:45] Speaker 01:
Well, we weren't suggesting to use the U.S.

[00:56:48] Speaker 01:
export price as a certain value.

[00:56:49] Speaker 01:
We're saying this is a probative fact that you have to grapple with.

[00:56:55] Speaker 01:
it should inform your decision.

[00:56:57] Speaker 01:
And the last point I want to make is that both the agency and the court just rested on this notion that commerce has a single test to determine whether a certain value is aberrational, this bookend method.

[00:57:13] Speaker 01:
And while that may be a reasonable method in all cases, or in many cases, as applied here, it isn't because the corroborating end of that bookend

[00:57:22] Speaker 01:
that commerce used to use this $11 price for nitrogen into Thailand is based on a tiny quantity.

[00:57:29] Speaker 01:
It's less than 1% of all the imports into the six countries of nitrogen during that period.

[00:57:36] Speaker 01:
So in this case, where we have domestic Thai prices in Thailand, we have other export data calling into question the reliability of the Thai imports of nitrogen generally.

[00:57:50] Speaker 01:
And then all of the information that treatments submitted self corroborating each other, it's not reasonable for commerce to have relied on this single test to determine that the value they use for nitrogen is reliable.

[00:58:03] Speaker 01:
One last point with respect to the zero quantity issue in the import data.

[00:58:11] Speaker 01:
The government argues that they like to use a whole set of data and they don't want to cherry pick information out of the data.

[00:58:19] Speaker 01:
the argument here today, for the court's understanding, the Commerce Department does this all the time.

[00:58:28] Speaker 01:
They use the import data and they exclude imports from non-market economies.

[00:58:33] Speaker 01:
They exclude imports from countries that they believe maintain broadly available export subsidies.

[00:58:38] Speaker 01:
So this idea that it would be difficult or somehow burdensome to also add in the requirement that if the quantity is zero, we just kick it out,

[00:58:47] Speaker 01:
It's not a burden on the agency to do this.

[00:58:51] Speaker 01:
And so that's not a real justification when they're already doing pretty significant manipulation to the import data and determining these import values.

[00:59:01] Speaker 03:
Thank you.

[00:59:01] Speaker 03:
Perfect timing.

[00:59:02] Speaker 03:
Thank you.

[00:59:04] Speaker 03:
Mr. Brightville.

[00:59:06] Speaker 04:
Thank you, Your Honor.

[00:59:08] Speaker 04:
So I would like to use my time to mostly address the standard of review and tempered glass issue.

[00:59:14] Speaker 04:
And then I have one small point with respect to nitrogen in response to the court's questions.

[00:59:20] Speaker 04:
So on the standard of review covering the tempered glass issue, Ying Li is arguing for the first time today that the correct standard is an abuse of discretion standard.

[00:59:33] Speaker 04:
But that's incorrect.

[00:59:36] Speaker 04:
This court typically reviews CIT decisions de novo.

[00:59:41] Speaker 04:
And you have explained the limited circumstances in which you employ an abusive discretion standard in the ALTX case, citing your decision in Taiwan's semiconductors, that you will apply an abusive discretion standard where the trial court performed no substantial evidence review at all for this court to review.

[01:00:06] Speaker 04:
But if you look at the lower court's slip opinions,

[01:00:10] Speaker 04:
you see a very careful evaluation of the evidence, both in the original remand, Swift Opinion 17143, and in the second remand, Swift Opinion 1853.

[01:00:23] Speaker 04:
So you see the court saying Commerce didn't explain why its selection was reasonable in light of the Hong Kong data and its value.

[01:00:35] Speaker 04:
They found that the

[01:00:38] Speaker 04:
The commerce's statements were insufficiently explained.

[01:00:42] Speaker 04:
The court found that it isn't clear from wood flooring whether commerce's process is to assess the percentage of the market that the input data constitutes.

[01:00:53] Speaker 04:
So there was real review and analysis by the lower court, and therefore you should apply a de novo standard here, as you've done in the past.

[01:01:07] Speaker 04:
And that being said, Commerce clearly was attempting to defend its practice.

[01:01:13] Speaker 04:
If you look at Appendix 6502, that is the remand results for the second determination.

[01:01:23] Speaker 04:
And if you look on page 17, Commerce clearly states that it is Commerce's practice that countrywide data represents broad market averages and that import statistics

[01:01:37] Speaker 04:
represent prices available countrywide from all global trading partners, and thus they are representative of the actual market situation that exists in the surrogate country.

[01:01:47] Speaker 04:
And that's why they found that commerce's selection of tie import data to value temper glass is consistent with its preference for that broad market representation.

[01:01:58] Speaker 04:
So yes, commerce reversed its practice under protest, but it clearly defended

[01:02:06] Speaker 04:
its practice and would have reached a different result if not for the court's challenges in the two remotes.

[01:02:19] Speaker 04:
Last point with respect to the nitrogen issue where the United States, one of the judges asked about the challenge of comparing import data with export data.

[01:02:30] Speaker 03:
Can I just ask you, is that one of the issues in Trina's main appeal?

[01:02:38] Speaker 04:
Yes, it is.

[01:02:44] Speaker 03:
Okay.

[01:02:44] Speaker 03:
I don't think it's appropriate for you to respond to Mr. Fried unless my colleagues disagree.

[01:02:50] Speaker 03:
Mr. Fried had his rebuttal time and the other side had a chance.

[01:02:54] Speaker 03:
I think it would be a little bit inappropriate for you to get to respond to Mr. Fried when he is not going to be able to get up and respond.

[01:03:04] Speaker 04:
Okay, I'm sorry.

[01:03:04] Speaker 04:
We had agreed to merge our response and our rebuttal time just for the convenience of the court, but if you'd rather not, I don't have to address that point.

[01:03:14] Speaker 03:
Do my colleagues have a view?

[01:03:17] Speaker 05:
I agree with the Chief Judge.

[01:03:20] Speaker 03:
Yeah, I'm fine either way.

[01:03:22] Speaker 03:
Okay.

[01:03:23] Speaker 03:
All right.

[01:03:23] Speaker 03:
Why don't we conclude it there?

[01:03:25] Speaker 03:
We thank all parties.

[01:03:27] Speaker 03:
This has been a bit confused, and we appreciate your cooperation in making this fairly seamless.

[01:03:34] Speaker 03:
Thank you all and the case is submitted.