[00:00:00] Speaker 03:
So we will hear argument next in 23-2135, carbon-activated Tianjin against United States, Ms.

[00:00:10] Speaker 03:
Hartman.

[00:00:11] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:13] Speaker 00:
This case presents a simple issue, whether the Department of Commerce's selection of the surrogate value for carbonized materials in the 12th administrative review of the anti-dumping order on certain activated carbon from China

[00:00:26] Speaker 00:
is supported by substantial evidence and otherwise in accordance with law.

[00:00:30] Speaker 00:
The statute directs commerce to value factors of production based on the best available information from one or more market economy countries.

[00:00:39] Speaker 00:
Carbonized material is one of the primary factors used to produce activated carbon.

[00:00:44] Speaker 00:
The AR-12 record shows that the two Chinese respondents sold subject merchandise that was produced using coal-based activated carbon or carbonized materials.

[00:00:55] Speaker 00:
Activated carbon can also be made from wood-based charcoal or coconut shell charcoal.

[00:01:00] Speaker 00:
Here, commerce had a choice between two potential surging values from Malaysia for carbonized materials.

[00:01:07] Speaker 00:
larger subheading that covers wood charcoal as well as coconut shell charcoal.

[00:01:13] Speaker 00:
And the second was a more narrow subheading.

[00:01:15] Speaker 00:
That's the basket provision.

[00:01:16] Speaker 00:
That's correct.

[00:01:17] Speaker 00:
It's actually not a basket category.

[00:01:18] Speaker 00:
It's a higher level subheading.

[00:01:20] Speaker 00:
So it's a six-digit subheading.

[00:01:21] Speaker 01:
But it has two items in it.

[00:01:22] Speaker 00:
That's correct.

[00:01:24] Speaker 00:
It covers both coconut shell and other wood.

[00:01:27] Speaker 00:
And then the more narrow subheading under that, 4402-91000, which only covers coconut shell charcoal.

[00:01:34] Speaker 00:
Commerce chose the narrower category.

[00:01:36] Speaker 00:
In the lower court's first opinion, the court remanded, stating absent evidence the respondents had used coconut shell charcoal.

[00:01:44] Speaker 00:
Commerce's selection of the narrower subheading over the broader heading was unsupported by substantial evidence and lacked reason explanation.

[00:01:53] Speaker 00:
On remand, Commerce initially reversed itself and selected the broader heading.

[00:01:57] Speaker 00:
However, Commerce reverted again in the final remand determination.

[00:02:02] Speaker 00:
In doing so, they made three findings.

[00:02:04] Speaker 00:
First, Commerce found, and I'm quoting here from ABPX 4800, that there was a long, demonstrable history in this proceeding of using coconut shell card map in the production of subject merchandise.

[00:02:17] Speaker 00:
unlike woodcar mat, which has never been used to produce subject merchandise.

[00:02:21] Speaker 03:
Can I just stop you?

[00:02:23] Speaker 03:
Is that the sentence about which there's a dispute about, basically, how to read it, whether it means what this respondent or others actually used, or whether it's, though not quite worded this way, what the agency has used in previous iterations of this proceeding?

[00:02:45] Speaker 00:
We understand that as our friend's interpretation of what commerce actually meant, we were just pointing out that that is what commerce actually said, and that the court quoted that finding, that erroneous finding, in its decision.

[00:02:55] Speaker 00:
And so we submit that that is clear error, because the court repeated the erroneous finding by commerce that there was use of coconut shell charcoal, which there has not been.

[00:03:05] Speaker 00:
And the second reason commerce gave is relevant to the other argument from our friends, is that it was commerce's practice of selecting.

[00:03:12] Speaker 00:
So commerce used coconut shell.

[00:03:15] Speaker 00:
in prior cases, in prior reviews.

[00:03:17] Speaker 00:
And we submit that there is not, in fact, a consistent prior practice of selecting coconut shell.

[00:03:24] Speaker 00:
In prior reviews, there was one Chinese company, a company called Jacobi Carbons, that had advocated for the use of coconut shell charcoal.

[00:03:32] Speaker 00:
And in AR5, they even submitted evidence, it was an expert report,

[00:03:36] Speaker 00:
showing that their activated carbon could not be produced from wood-based charcoal.

[00:03:41] Speaker 00:
And so then in a series of prior reviews, which were the cases that Commerce cited in support of its finding, Commerce had consistently selected coconut shell

[00:03:50] Speaker 00:
because Jacobi Carbons had presented this evidence.

[00:03:54] Speaker 00:
Jacobi Carbons was not a respondent in AR-12.

[00:03:56] Speaker 00:
There was no such evidence about use or comparability of coconut shell versus the coal-based carbonized materials that the AR-12 respondents used.

[00:04:06] Speaker 00:
And therefore, it was not reasonable for commerce to rely on that prior practice.

[00:04:11] Speaker 00:
And we submit that this court's decision in Jacobi Carbons, which was an appeal from AR-4, is directly on point there.

[00:04:18] Speaker 00:
Because the cases that Commerce is citing did not involve a decision between this broader subheading, which covers wood and coconut, versus the narrower subheading.

[00:04:31] Speaker 00:
And so Commerce's findings, their analysis based on other choices, which included a comparison between coconut shell or coax of coal, which is a completely different product, does not speak to the reasonableness of the choice they made here.

[00:04:43] Speaker 02:
Just curious.

[00:04:45] Speaker 02:
You're making a lot of arguments why

[00:04:48] Speaker 02:
The coconut shell shouldn't really have been considered, but you in the end want both coconut shell and wood to be considered.

[00:05:02] Speaker 02:
And I'm just trying to figure out why aren't you then arguing, well, it should just be wood alone instead of wood and coconut shell, because obviously your bottom line is premised on coconut shell actually being worthwhile as a consideration.

[00:05:18] Speaker 00:
And Your Honor, I think the arguments that were presented before commerce and on appeal were not that coconut shell is completely dissimilar or would never be an appropriate surrogate.

[00:05:30] Speaker 00:
It was that this record lacked evidence about the comparability of the two.

[00:05:34] Speaker 02:
Whose burden is it to develop the record?

[00:05:37] Speaker 00:
It is the parties, both respondents and the petitioners, and the potential surrogate values that were submitted.

[00:05:43] Speaker 02:
I mean, in circumstances like this, when we have a non-market economy and we're trying to figure out these surrogate values, isn't it your party's burden to try to develop the record?

[00:05:54] Speaker 00:
I think this question of comparability didn't really get developed until even when the lower court remanded to commerce, saying there's no evidence on the record.

[00:06:06] Speaker 00:
Commerce did not reopen the record on remand.

[00:06:09] Speaker 00:
And so then initially, in the draft remand, recognized there was a lack of record evidence and found that, because of the lack of record evidence, it was reasonable to use the broader heading, but then reversed itself.

[00:06:21] Speaker 00:
So that's why we're stuck with this position of having to address commerce's findings in the final remand, where there is this lack of record evidence, which the lower court recognized in initially remanding back to the agency.

[00:06:36] Speaker 00:
So we addressed, we went through the facts that are relevant and distinguished commerce's prior cases on pages 16 to 22 of our blue brief.

[00:06:44] Speaker 00:
Happy to get into them if the court has any questions.

[00:06:47] Speaker 00:
Otherwise, I'd just note that the third reason that commerce gave for selecting coconut shell was based on what it determined were differences in the production processes.

[00:06:59] Speaker 00:
And specifically, they cited a footnote in one of the ITC's reports from the original investigation.

[00:07:05] Speaker 00:
We submit that commerce's inference from this footnote is unfounded.

[00:07:09] Speaker 00:
What the footnote actually says is that chemically activated carbon is generally made using wood.

[00:07:15] Speaker 00:
It does not say that wood-based charcoal cannot be used to make steam or heat activated carbon, which is the subject merchandise.

[00:07:23] Speaker 00:
In fact, the scope explicitly covers activated carbon made using wood-based charcoal.

[00:07:29] Speaker 00:
Commerce has selected wood-based charcoal with its surrogate value in prior reviews.

[00:07:33] Speaker 00:
Petitioner has advocated for using wood-based charcoal at various points.

[00:07:38] Speaker 00:
So simply relying on that footnote in the ITC report is not substantial evidence.

[00:07:44] Speaker 00:
Commerce also disregarded other aspects of the ITC reports that distinguished coconut shell from charcoal-based activated coal.

[00:07:55] Speaker 00:
If there are no further questions, I will pause and reserve time.

[00:08:00] Speaker 03:
Thank you.

[00:08:23] Speaker 03:
Mr. Grover.

[00:08:24] Speaker 01:
Good afternoon, your honors.

[00:08:26] Speaker 01:
May I please report?

[00:08:28] Speaker 01:
Commerce's determination should be upheld in this case because it was a reasonable determination, particularly given the sparse record and the broad discretion that commerce enjoys in the area of selecting surrogate values.

[00:08:41] Speaker 01:
I want to address right up front this issue of... You're representing the government, right?

[00:08:48] Speaker 01:
Yes.

[00:08:49] Speaker 01:
I want to clarify this issue about what commerce said in its remand determination.

[00:08:53] Speaker 01:
Because by my count, I count at least three separate instances in the remand determination at page 4800, 4802, and 4809.

[00:09:02] Speaker 01:
And then two more instances in the trial court decision at page 54 of the record, note 6.

[00:09:11] Speaker 01:
And 57 of the record which is in turn referring back to the commerce determination at page 4802 I know I just threw a lot of pages out of you.

[00:09:18] Speaker 02:
What are those page in the trial?

[00:09:21] Speaker 02:
Sure sure I've got a 4800 4802 and 4809 right and what what are the ones 54 note 6 and 57 which is referring back to 48 it's citing 4802 page 7 of the commerce remain 54 note 6 and

[00:09:37] Speaker 01:
57, which is in turn citing Riemann determination 7, which is 4802.

[00:09:44] Speaker 01:
So you'll find that all of these pages is commerce repeatedly referring to not just the people in the past have used coconut shell as a surrogate value, but the fact that commerce has repeatedly, and I think, you know, to clarify,

[00:09:58] Speaker 01:
By my count, it's in every review since AR4 of this proceeding.

[00:10:05] Speaker 01:
Commerce has used coconut shell carbon to value the coal base.

[00:10:12] Speaker 01:
Sometimes it's both coconut and coal, sometimes it's coconut.

[00:10:15] Speaker 01:
Sometimes it's just cold, just like this case.

[00:10:17] Speaker 01:
Commerce and all of those reviews since AR4, the last seven, has relied on coconut-based products as a surrogate value for the carbonized material.

[00:10:30] Speaker 02:
But coconut only, that's administrative review three, five, and nine, right?

[00:10:35] Speaker 01:
No.

[00:10:36] Speaker 01:
No.

[00:10:38] Speaker 01:
I think the best place one could find a rundown of this issue is actually in the intervener's brief, page 29, footnote 4.

[00:10:47] Speaker 01:
For all of these reviews, Commerce has used some form of coconut-based carbonized material.

[00:10:54] Speaker 01:
It has never used wood.

[00:10:56] Speaker 01:
And no party has ever said that they've used it.

[00:10:58] Speaker 01:
Even though my colleague is right that in this case, time around, it's coconut only, right?

[00:11:04] Speaker 01:
This time around, it's coconut only.

[00:11:06] Speaker 01:
And in all of those reviews I just mentioned, they also, I believe, use coconut only.

[00:11:12] Speaker 01:
In fact, most of the time, there was an argument from the eighth review to the tenth review.

[00:11:17] Speaker 01:
There was an argument because the coconut

[00:11:22] Speaker 01:
HTS category included some French imports that everyone was upset about because they thought that they included wood-based carp and material and there were arguments About whether those should be excluded and there were a couple reviews where because they said real wood shouldn't be in here Commerce excluded the wood and then in the tenth review it Refused to exclude the French imports, even though they may have contained wood They said there wasn't enough evidence and there was three remands and ultimately they decided to exclude it.

[00:11:49] Speaker 01:
But the ethos has been

[00:11:52] Speaker 01:
This is what commerce said in this remand determination in this case most specifically at note 26 I'm referring back to that the third fifth and ninth reviews which are the ones that provided as examples Commerce said we have found and it's not merely that we've used but we have found in the past that coconut-based carbon material

[00:12:13] Speaker 01:
is a good surrogate value for the coal-based carbon material that the respondents use.

[00:12:21] Speaker 01:
Also, despite plaintiff's characterization, this is not the only case where the choice has been between

[00:12:29] Speaker 01:
the HCS category that Commerce used in this case and either a broader category or, in fact, the same basket category.

[00:12:40] Speaker 01:
This court reviewed the 11th review proceeding of the carbon order, and that was reflected in another decision of this court, which is cited at page 5

[00:12:55] Speaker 01:
I'm sorry, footnote five of the intervener's brief.

[00:12:57] Speaker 01:
It's another carbon-activated tangent decision, I believe.

[00:13:01] Speaker 01:
And in that case, the issue that was actually before the court had to do with the surrogate country selection.

[00:13:07] Speaker 01:
But the stuff of the surrogate country selection, why they were deciding between the surrogate countries, was all based on who had the better carbon-based data.

[00:13:15] Speaker 01:
And so you won't see in the headings carbon-based surrogate country selection.

[00:13:19] Speaker 01:
But when you read through, you'll see that what the

[00:13:23] Speaker 01:
What the parties were saying was that commerce had to choose either between Malaysia, which had the same surrogate value they used in this case with the eight digits or 10 digits.

[00:13:36] Speaker 01:
or the same six-digit basket category from Romania.

[00:13:41] Speaker 01:
They wanted Romania in that case and said that it had the six-digit basket category.

[00:13:46] Speaker 01:
And the whole stuff of that decision was that commerce said, no, we like Malaysia in particular because it has the most more specific surrogate value.

[00:13:54] Speaker 01:
We don't want to use the six-digit category.

[00:13:56] Speaker 01:
And in that case, just at a 50-foot level, there have been some cases where the responders just used coal.

[00:14:04] Speaker 01:
There have been some cases where the respondents used both coal and they said they used coconut.

[00:14:10] Speaker 01:
In the 11th review case, for example, this respondent said, we just use coal.

[00:14:17] Speaker 01:
We don't use coconut.

[00:14:19] Speaker 01:
And the other respondent said they did use coconut.

[00:14:22] Speaker 01:
And it's not in this court's decision, but if one were to look at the district court decision just under that, there was some argument about that.

[00:14:28] Speaker 01:
And the district court said, well, just because you only use coal.

[00:14:32] Speaker 01:
To step back from all of that,

[00:14:34] Speaker 01:
This court's precedent doesn't say that commerce has to treat identical situations similarly the jurisprudence going back all the way to SKF is that commerce acts unreasonably when it treats similar situations differently And so we would we would argue that you know there have been a lot of similar situations The fifth review again it was this category versus not a six-digit But a four-digit basket category chopped off two more digits and commerce went with a more specific.

[00:15:02] Speaker 01:
It's always gone from

[00:15:03] Speaker 01:
for coconut since the fourth review.

[00:15:05] Speaker 01:
The fourth review was the last time, eight years ago, that they used any kind of wood, and that was a specific set of circumstances where Congress decided that was the best thing on the record.

[00:15:14] Speaker 02:
What do you think is the real evidentiary value of that ITC report statement, that chemically activated carbon is typically used for wood?

[00:15:28] Speaker 02:
Sure.

[00:15:34] Speaker 02:
therefore not relevant to steam-activated carbon.

[00:15:38] Speaker 02:
That seems to be where commerce was going, and I'm just not sure that there's a bridge between those two things.

[00:15:46] Speaker 01:
Right.

[00:15:46] Speaker 01:
Well, the ITC report said two things.

[00:15:50] Speaker 01:
First of all, page 3267, it said that

[00:15:53] Speaker 01:
You know the nature of the product depends both on the makeup of the material and the activation process at 3268 it then goes on to say that Chemically activated carbon is usually made of wood and so I think commerce took a reasonable position They said that makes it more likely that we should be going with coconut rather than wood They didn't say it's absolutely impossible for wood to be steam activated, but that is

[00:16:16] Speaker 01:
information makes it more likely.

[00:16:19] Speaker 01:
The appellants say that commerce mischaracterizes.

[00:16:22] Speaker 01:
So commerce didn't take that far.

[00:16:24] Speaker 01:
I mean, it's kind of a, I think of it colloquially as like a Bayesian statistics thing.

[00:16:29] Speaker 01:
You know, if you pull one red pebble out, it makes it more likely that the next one's going to be red.

[00:16:36] Speaker 01:
But I think part of the import there is that was evidence that was on the record that made it more likely that commerce should use coconut.

[00:16:44] Speaker 01:
The appellants argue that commerce is kind of mischaracterizing the record there that they're taking it too far, but look we're here I mean there is

[00:16:54] Speaker 01:
I think we know that commerce didn't get it wrong here because we have the next case that we're going to argue in 10 minutes where there's even more direct evidence that says that steam is coal and coconut and wood is chemical.

[00:17:11] Speaker 01:
And commerce didn't make a comparative finding in this case.

[00:17:14] Speaker 01:
In that case, commerce did make a comparative finding and actually said,

[00:17:19] Speaker 01:
Coconut is closer.

[00:17:21] Speaker 01:
It's coconut and coal are more close than wood and coal commerce didn't make that finding in this case, but at note 26 in the In the remand results commerce did go back to the finding that it that it's made on a number of occasion Which is that there are a lot of similarities between coconut and coal and that coconut is a good surrogate value for coal

[00:17:43] Speaker 01:
So even though it didn't make a comparative finding, it certainly made the finding that coconut is a good value.

[00:17:49] Speaker 01:
That's why the history matches up with the evidence on the record.

[00:17:52] Speaker 01:
And in a case where it was a close call between and commerce had to kind of weigh two different factors on a pretty sparse record, that's how commerce ended up where it did.

[00:18:06] Speaker 01:
job is not to decide what the best available information was, it's to determine whether commerce's estimation of what the best available information was, was reasonable.

[00:18:15] Speaker 01:
And given everything here, I think it's hard to say, even if you could make an argument that commerce should have relied on the basket category and used wood and

[00:18:25] Speaker 01:
Coconut instead that it was not unreasonable I do think if commerce had done that we could be here on the same case and while maybe I would be in the same position of arguing that commerce is reasonable I think it would be a stronger case if you had the other side up here appealing that it wasn't reasonable for commerce to rely on both wood and coconut because there's other than the fact the only fact that they say is we didn't we definitely didn't use either one of those and

[00:18:52] Speaker 01:
And they're relying on that kind of absence of evidence to say that Congress should do both.

[00:18:57] Speaker 02:
How does one get carbon out of a coconut shell?

[00:19:01] Speaker 02:
You have an innocent coconut sitting there.

[00:19:04] Speaker 02:
I know.

[00:19:04] Speaker 02:
And then what do you have to do to it?

[00:19:06] Speaker 01:
I was reading this in the record of the next case.

[00:19:09] Speaker 01:
I think you're treating it with acid and pressure and steam.

[00:19:16] Speaker 01:
I mean, I think it's all carbonized material, you know, the shells of nuts and wood.

[00:19:22] Speaker 01:
Anyway, I probably shouldn't speculate.

[00:19:25] Speaker 01:
But to go back to the beginning of my remarks, because I probably should have articulated this, the sentence that they point to on page 4800, where commerce allegedly misspoke,

[00:19:36] Speaker 01:
The sentence right before that the first sentence of the paragraph commerce says we have a long history of using coconut as the surrogate value in this proceeding.

[00:19:45] Speaker 01:
So that's clearly the ethos of what they're talking about when they come back to it on 4802.

[00:19:49] Speaker 01:
They said it's been our practice.

[00:19:51] Speaker 01:
You know, we have no reason to delegate from our practice of using it and then on 4809.

[00:19:56] Speaker 01:
They say, as we said above, based on our history of using coconut in this proceeding, as well as the evidence indicating that wood is more likely to be associated with chemical, which again, I think we know they weren't wrong about that.

[00:20:15] Speaker 01:
You know, that's why we're landing where we're landing.

[00:20:17] Speaker 01:
It was a close case, but ultimately, commerce is reasonable, and that's why they should be upheld.

[00:20:21] Speaker 03:
Thank you.

[00:20:31] Speaker 04:
Good afternoon.

[00:20:32] Speaker 04:
May it please the court?

[00:20:33] Speaker 04:
There are two principles that I think need to be balanced here, both by the court and by commerce when looking at this record.

[00:20:40] Speaker 04:
On the one hand, you have the fact that every administrative review stands on its own, and every record has to support the department's findings.

[00:20:47] Speaker 04:
And everyone agrees that that principle is in play here, I think.

[00:20:51] Speaker 04:
On the other hand, you have the fact that the trial court recognized at appendix page 57 of its opinion that commerce administers these trade orders over time.

[00:21:01] Speaker 04:
We're in the 12th administrative review here.

[00:21:03] Speaker 04:
And over those 12 years, commerce has built a certain knowledge about activated carbon as a product, the production process to make it, and the inputs that go into it.

[00:21:13] Speaker 04:
And I think what the respondent in this case is largely asking is for commerce and the court to disregard the long history here.

[00:21:22] Speaker 04:
And the history is really two components, both that coconut shell.

[00:21:26] Speaker 03:
As a matter of either regulation or recognized court-approved practice or something, is the record in any given administrative review

[00:21:39] Speaker 03:
automatically include the prior commerce rulings in the earlier emissary reviews?

[00:21:48] Speaker 04:
Certainly to the extent that those are published findings.

[00:21:51] Speaker 04:
So for example, federal register notice and the memos that accompany that federal register notice that underlie the department's decisions.

[00:21:57] Speaker 04:
Absolutely.

[00:21:58] Speaker 04:
I mean, commerce is building practice over time, both as a general matter and within the context of the case.

[00:22:03] Speaker 02:
We also have other case law that commerce also endorses

[00:22:07] Speaker 02:
that says something like each administrative review is considered on its own facts and record.

[00:22:16] Speaker 04:
Yes, absolutely, Your Honor.

[00:22:17] Speaker 02:
And in fact, I think the government's going to rely on that principle in the next appeal in one part.

[00:22:23] Speaker 04:
Yes, I agree, Your Honor.

[00:22:24] Speaker 04:
So I think what needs to happen here and what the lower court did and what Commerce was doing was trying to balance those two principles.

[00:22:30] Speaker 04:
You have a certain practice that builds up over time with respect to an individual case, and you have the fact that every record needs to stand on its own.

[00:22:38] Speaker 04:
here, and we cited this in our brief at page 29, note 4, we cite that for at least the last four reviews, 8, 9, 10, 11, leading up to this 12th review, the respondents argued in favor of using coconut shell charcoal as a surrogate value, both for coal-based consumption and coconut shell consumption.

[00:23:01] Speaker 04:
And Commerce adopted that argument, and it has used coconut shell charcoal as the surrogate value

[00:23:06] Speaker 04:
for all of these recent cases.

[00:23:08] Speaker 04:
Not always the import value necessarily, but there's another coconut-based publication that has been put on the record in the past that Commerce has used.

[00:23:16] Speaker 04:
So in light of that history coming into this review,

[00:23:20] Speaker 04:
isn't it even more incumbent on the party that is seeking a change from that practice, and Judge Chen was inquiring about this point earlier, isn't it that party's burden to build the record, to show that a departure is warranted?

[00:23:34] Speaker 04:
Commerce has this understanding, and it's published in its findings that coconut shell is the best source to value both coconut shell consumption itself, but also coal-based materials.

[00:23:43] Speaker 04:
So to the extent that

[00:23:45] Speaker 04:
Commerce should have done something quite different in this review compared to what it's done in the past.

[00:23:51] Speaker 04:
The burden was on the respondent to put something on the record to support that argument.

[00:23:56] Speaker 04:
And here it did not.

[00:23:58] Speaker 04:
There's the two ITC reports that have been in existence for quite some time that Commerce reasonably relied on to reach its findings.

[00:24:05] Speaker 04:
And of course, we'll be talking shortly about the evidence in the next review.

[00:24:09] Speaker 04:
But all parties here, I think, including the trial court, understood that the record was thin.

[00:24:14] Speaker 04:
and that Commerce chose the best available information based on what it did have on the record and based on the long history in this case.

[00:24:22] Speaker 03:
Thank you.

[00:24:23] Speaker 04:
Thank you.

[00:24:36] Speaker 00:
To be honest, I have quite a bit of time, but I think we can keep this short just to briefly address some of the points we heard from our friends.

[00:24:43] Speaker 00:
recognized that the last time that Commerce was faced with a choice between this broader category that covered wood and coconut shell was in AR4.

[00:24:51] Speaker 00:
What happened in AR4 was that case went all the way up to this court on appeal.

[00:24:55] Speaker 00:
In the following review, Jacoby Carbons put on this new evidence about how its own activated carbon could not be produced using wood-based charcoal.

[00:25:05] Speaker 00:
And so that was the point where Commerce went in this direction of, OK, we're going to continuously find that coconut shell is

[00:25:12] Speaker 00:
the best available information, it was because Jacobi Carbons had put on that very specific evidence about its own product, its own subject merchandise.

[00:25:21] Speaker 00:
Jacobi Carbons, obviously, was not a respondent in this review.

[00:25:24] Speaker 00:
And none of the respondents had evidence.

[00:25:27] Speaker 03:
So would I understand correctly that where, assuming that this commerce order survives, that you still have the ability in, if not the next one, which probably is too far along,

[00:25:42] Speaker 03:
but in further proceedings to produce new evidence about why, after all, coconut is not the best comparator or substitute.

[00:25:55] Speaker 00:
That's correct, Your Honor.

[00:25:56] Speaker 00:
And you'll see, as our friends previewed, that the following administrative review, which was AR 13, the parties did make more of an effort to put on some of that information in their surrogate value submissions.

[00:26:09] Speaker 00:
As Judge Chen recognized, each review is its own discrete segment.

[00:26:13] Speaker 00:
Judge Shonto, you asked if prior decisions from the department go on the record.

[00:26:17] Speaker 00:
They don't necessarily.

[00:26:19] Speaker 00:
They can be cited by the parties as legal authority, but often all of the memos underlying Commerce's decision don't actually get put on the record automatically.

[00:26:27] Speaker 03:
So issues of decision memos are not sort of judicially noticeable, or they are?

[00:26:32] Speaker 00:
Oh, of course, judicially noticeable, but not actually part of the administrative record, which is the point.

[00:26:36] Speaker 00:
And then one final point.

[00:26:37] Speaker 00:
I mentioned the case where the Chinese respondents had argued against using a certain category of import data because it included imports from France that had wood-based charcoal.

[00:26:54] Speaker 00:
I just point out that that case, the reason wasn't that the respondents did not argue that wood-based charcoal is not comparable.

[00:27:02] Speaker 00:
What they argued was that the very specific type of wood-based charcoal that was being imported from France was only suitable as use in animal feed, and it was not comparable or not specific to their input for that reason.

[00:27:14] Speaker 00:
So that was just a clarification.

[00:27:17] Speaker 00:
So we submit that this case is most similar to AR4, where this court said that

[00:27:23] Speaker 00:
Where commerce's prior analyses do not speak to the choice between wood or similarities between wood and coconut shell, it's not reasonable to rely on those prior analyses to support the choice of just coconut shell.

[00:27:38] Speaker 02:
And what material does carbon activated use?

[00:27:42] Speaker 02:
Coal-based.

[00:27:43] Speaker 02:
You use coal.

[00:27:43] Speaker 02:
Coal-based.

[00:27:46] Speaker 03:
Thank you.

[00:27:46] Speaker 03:
Thanks to all counsel.

[00:27:48] Speaker 03:
This case is submitted.