On our docket today, scheduled for oral argument, we have two cases that have been submitted on the briefs. Our first case is down hold pipe and equipment versus US. Council ready. Mr. Linhart. Your honors. Good morning. My name is Mark Lennart. I represent down hold pipe and equipment and DP master manufacturing. Our briefs contain several arguments, all of which are Ameritoreous and deserving of your attention. But in my presentation, I'd like to focus on two despositive aspects of the arguments. First, regarding the $5,000 surrogate value for green two, key comparisons found on page 13 of our reply brief, that established that no reasonable mind could conclude that commerce selected the best available information. On page 56 of the blue brief, down hold says, commerce's statement that record evidence demonstrates that P110 and J's last K55 OCPG cannot be used to produce drill pipe is simply wrong
. And that either P10 or J's last K55 with proper chemistry could be used to produce drill pipe. Where are the record examples of this being done in the industry? There are no concrete examples on the record, but in the so it's a turning argument and nothing else. Not exactly, Your Honor, in the 2002 and in the the ITC's investigation of OCPG from several countries. In those proceedings, the green tube producers argued to the ITC that green tube was a commodity product and essentially could be used interchangeably at the green tube stage. So the essence of your argument is that green tube can't fall into two different categories? Well, the green tube, that green tube for oil country tubular goods, which includes casing tubing and drill pipe, is essentially the same. You have different requirements for different types of drill pipe, oil casing and tubing, but these requirements overlap among the different products. They overlap, but they're not the same, are they? They are the same in many instances. In terms of, you know, there are two instances here. One is the API standard, which is the industry standards. And in those, there are direct overlap with all the three criteria in the Commerce's scope. For at least half of the API standards, but the scope isn't just API standards. It's also proprietary standards
. So the overlap is much wider than that. It didn't commerce in this case, take steps to make sure that there was no overlap with the existing orders. That's what they say, Your Honor, but what they did was invalid. And it goes to the definition of oil country tubular goods in the language in the scope. Oil country tubular goods includes drill pipe casing and tubing. In the OCTG from China order investigation, the petitioners in their petition requested that the scope language say OCTG, including only casing and tubing, but commerce did not include that limiting language in the scope. Commerce in the initiation and in the final scope language says OCTG, including casing and tubing. The scope language also includes unfinished oil, unfinished OCTG, including green tube. And only specifically excludes real pipe. It does not exclude unfinished real pipe, which is green tube used to produce oil country tubular goods, real pipe casing and tubing. But in this case, commerce defined the scope as not including, any unfinished tubes for casing or tubing covered by any other anti-dumping or counter-vailing duty orders. Sure, but the problem with that is, if you'll excuse the simplicity of this analogy, it's like saying that there is an anti-dumping order against rectangles from China
. And then commerce begins a new investigation of squares and triangles from China, excluding any squares covered by a previous order. All squares are rectangles, and you can't carve that out of the rectangle order, just like you can't carve out a drill pipe green tube from an order that covers green tube for all oil country tubular goods. Well, you don't have any problem then, because if it's a total overlap, your objectionist is valid and you don't have a problem, right? Well, the difficulty is that when green tube is included in the scope and in the calculation of industry support, then the industry support calculation is off. For commerce to initiate an investigation, it requires at least 25% of the domestic industry by volume supporting the petition. And when this, when the production volume for green tube is excluded from the industry support order, you don't see the same result from the calculation as commerce had when it initiated the order. So even if we were to find in your favor, you saying that there's authority to go back and that this would affect the standing decision of ITC? I'm not sure what you understand. I'm not sure I understand what you mean by the standing. Well, the industry support, you use industry support to establish standing, correct? Ring of petition? Sure. Okay, that's what I'm talking about. Yeah, there's authority. The industry support argument, when that is the issue, then you were arguing about it after the orders in place, but the result is from the beginning. The statement of administrative action, are both two separate distinct determinations
. I see the link, but aren't they distinct? No, they are distinct. I mean, the Department of Commerce is going to establish the domestic industry and then the ITC is looking at the like product. And so, or the domestic product and the like product. So, but the domestic industry support calculation and determination is solely with the Department of Commerce. Regarding the green tube surrogate value, the basic principle here is that an input should not be valued higher than the finished product. On page 13 of the reply brief, it lists, it has a table with several of the alternate surrogate values on the record. And also petitioners are the average unit value of petitioners 2006, 2008, finished real pipe, finished real pipe prices. And what you see here is the $5,000 surrogate value for the green tube input, compares to among other things the $2,500 Indian HTS category for finished real pipe. Oh, sorry. What page did you see? This is page 13 of the reply brief. Okay. Here, that comparison shows that commerce has valued the input at double the value of the finished product
. Considering also that unconferverted industry expert testimony on the record establishes the value of green tube at 30% of the value of the finished product. That comparison then becomes even more stark with when looking at a $5,000 value of the green tube surrogate value in the $2,500 value of the Indian HTS category for finished real pipe. The comparison with petitioners AUV for finished real pipe contrasts similarly. With these numbers, the CIT says your argument in this area is entirely conjectural. Well, the conjectural argument I believe was in relation to the national import specialist memo by the Department of Commerce. But what the court said in relation to the green tube surrogate value in this comparison with the HTS category for finished real pipe is that the value of the finished real pipe is the value of the finished real pipe. That commerce had adequately addressed our argument about the disparity in the values by establishing that there was more than just finished real pipe in the Indian HTS category. But that that analysis does not address how the Indian HTS category can be used in terms of a reference point for the value of green tube. The petitioners, well, let me begin with the Department of Commerce. They argue that the best available information is the standard. But the Department of Commerce argued that we could not compare the $5,000 SUV with the $5,000 SUV with the petitioners' average in the values of their finished real pipe prices because those are that information is not public. But the regulation they rely upon only relates to surrogate value selected not to information that is used to assess the reasonability of a surrogate value
. And it only expresses a preference saying that the secretary normally will use public information. The petitioners have a more direct argument about the Indian HTS category and the value there. They say that the value is dragged down by non finished real pipe products or non-drill pipe products. And so it's no longer usable as a comparison, but the math simply doesn't work out there. The evidence on the record establishes that at least half of the entries in the Indian HTS category for drill pipe include semi finished real pipe and finished real pipe. Now in regards to semi finished real pipe, the uncontroverted industry expert set the value of green tube at about 60% of the value. So for unfinished or semi finished real pipe, it would require a 40% reduction to get to the value of green tube with finished real pipe. It's a 70% reduction on the value. And what you have then is essentially about 50 or so reduction in the value of just the semi finished and finished real pipe. Mr. Leonard, are the price points for finished real pipe public information? Not for petitioners, a.V
. a finished real pipe. No, but we submit that it can be why was a.V. appropriate for commerce to consider in this. We're absolutely appropriate to consider as a reference point to assess the reasonability of the surrogate value selective. You know, just using as comparison is not going to make that information public. Well, if we were to assume the most extreme circumstance or hypothetical with petitioners argument that the remaining 50% of the entries under the Indian HTS category for drill pipe, if their value was zero. Then that would essentially be a 50% reduction in the prices or the average unit value of the semi finished and finished real pipe. That is essentially equivalent to the downward or the downward adjustment that would be required. So what the Indian finished real pipe category does is establish the extreme ceiling for a reasonable value of real pipe or excuse me of green tube. And thus when you compare with the $5,000 surrogate value, that's a double what the extreme ceiling could be. Because no reasonable mind could conclude that $5,000 remand surrogate value is the best available information
. This court should remand to commerce to select a reasonable surrogate value. Mr. Tet. Thank you. Thank you. I'll address the scope argument first as I think everything flows from that. Oh, you're not having flow jokes. No, you're on earth. Thank you. This will now flow better because of the joke. May it please the court? Council is absolutely correct that OCTG, oil country, tubular goods, actually encompasses casings and tubing as well as drill pipe. However, within the industry, as well as within the harmonized care schedules utilized by subscribing nation
. Those two categories of OCTG are separate and distinct. And the green tube that is used for those two categories of the greater heading of OCTG are separate and distinct as well. They're separate and distinct in mechanical properties, chemical properties, physical dimensions, and as well as their ultimate end use. In which case, the original order that pertains to OCTG casings and tubing and in parentheses and unfinished OCTG, including green tube, refers to green tube used for the casings and tubing covered by that order. Those green tubes would not be used to manufacture or produce green tube used for drill pipe. So unfinished drill pipe, which is covered by the drill pipe order is different than the unfinished OCTG covered by the OTCG order. In which case, the two orders are actually separate and distinct and cover separate. Well, given a fix of the agency plugged in, which was say, okay, we're excluding everything from the prior order. I don't see the problem anymore. Thank you, Your Honor. And that was done to ensure that there were no problems, no overlap. While downhole pipe and DP master have presented the court with a couple of OCTG products that have certain of the characteristics of green tube for drill pipe, not one of them contains all characteristics
. So there's no overlap here with respect to the order. And if there's no overlap with respect to the products covered by the two separate and distinct orders, there can be no issue regarding industry support. It need not be revisited at all. Now, with respect to the aberantly high values that DP master and downhole attributes to the AUV or the SB for subheading 73,04,2059, 90, I apologize. All the numbers are. And this is under the Indian HTS. That's correct, Your Honor. But on the six digit level, there's no distinction between the Indian HTS and the US HTS. They are the same at that level. There is a difference between the Indian. It doesn't mean they include the same product. At the six digit level, that's what that should mean. Because the harmonized error schedule was designed to a permit trader throughout the world to know what they're trading and where they're only at the six digit international level, those goods would be categorized. Now, distinction is a car at the eight digit level. So there is one thing that we're certain of here. There's no dispute that green tube for drill pipe is not drill pipe. It's simply not drill pipe. It is not unfinished drill pipe of the kind that could be categorized with the finished drill pipe. And that's because it doesn't have the essential characteristics of the finished product. And so green tube for drill pipe cannot be categorized with the unfinished product that has the same characteristics as the end product or the end product itself. Can you can you address the argument that your opponents are making with respect to domestic industry support. Hardly. For. I apologize your honor
. Because the harmonized error schedule was designed to a permit trader throughout the world to know what they're trading and where they're only at the six digit international level, those goods would be categorized. Now, distinction is a car at the eight digit level. So there is one thing that we're certain of here. There's no dispute that green tube for drill pipe is not drill pipe. It's simply not drill pipe. It is not unfinished drill pipe of the kind that could be categorized with the finished drill pipe. And that's because it doesn't have the essential characteristics of the finished product. And so green tube for drill pipe cannot be categorized with the unfinished product that has the same characteristics as the end product or the end product itself. Can you can you address the argument that your opponents are making with respect to domestic industry support. Hardly. For. I apologize your honor. I didn't understand the question with respect to the scope for with respect to classification or character categorization of these goods within the argument is that that once. Once the green tube is excluded from the anti dumping duty order that you got to go back and you got a fix the industry support determinates. Well, your honor had asked a question regarding standing and this court is previously held that commerce has broad discretion with respect to determining standing. Here, the industry support for the green drill pipe green tube was or for drill pipe was from drill pipe producers as well as those people who purchase green tube and ultimately produce it. There. I don't believe that there are any reason to we exclude the green tube from the anti dumping duty order. Does that affect or should it affect the domestic industry support determination that was made specifically the requirement to achieve a certain domestic support in order to bring a petition. No. I don't believe so. And well, it depends what you mean by green tube. Well, and that's what I thought I had addressed up front and I apologize your honor because I thought I had addressed that earlier on. Here answer that that commerce is identification of three physical characteristics, distinguished and automatically segregates the one green tube from the other green tube within the scope determination
. I didn't understand the question with respect to the scope for with respect to classification or character categorization of these goods within the argument is that that once. Once the green tube is excluded from the anti dumping duty order that you got to go back and you got a fix the industry support determinates. Well, your honor had asked a question regarding standing and this court is previously held that commerce has broad discretion with respect to determining standing. Here, the industry support for the green drill pipe green tube was or for drill pipe was from drill pipe producers as well as those people who purchase green tube and ultimately produce it. There. I don't believe that there are any reason to we exclude the green tube from the anti dumping duty order. Does that affect or should it affect the domestic industry support determination that was made specifically the requirement to achieve a certain domestic support in order to bring a petition. No. I don't believe so. And well, it depends what you mean by green tube. Well, and that's what I thought I had addressed up front and I apologize your honor because I thought I had addressed that earlier on. Here answer that that commerce is identification of three physical characteristics, distinguished and automatically segregates the one green tube from the other green tube within the scope determination. That is precisely the argument that we're making to the court today in which case there is no disruption with respect to the industry support. There is no overlap between the two orders. And so even still commerce would have had broad discretion and determining industry support to begin with. And here they have almost the entirety of the drill pipe industry within the United States encompassed as petitioners. So I'd like to conclude that I only have 30 seconds, 35 seconds left here with the advertley high argument. The advertley high argument is actually a false comparison because you have to assume that those numbers are accurate. There's actually no reliable information within the record to demonstrate that the numbers 5,000 or 2500 are actually accurate for purposes of comparing them to each other. And for all these reasons, your honor, we would your honor. We would request that you affirm commerce's reasonable determination here that was based on the best available information. Thank you. This is Sharon, you have some of the minutes. Yes, thank you, your honors may please this honorable court
. That is precisely the argument that we're making to the court today in which case there is no disruption with respect to the industry support. There is no overlap between the two orders. And so even still commerce would have had broad discretion and determining industry support to begin with. And here they have almost the entirety of the drill pipe industry within the United States encompassed as petitioners. So I'd like to conclude that I only have 30 seconds, 35 seconds left here with the advertley high argument. The advertley high argument is actually a false comparison because you have to assume that those numbers are accurate. There's actually no reliable information within the record to demonstrate that the numbers 5,000 or 2500 are actually accurate for purposes of comparing them to each other. And for all these reasons, your honor, we would your honor. We would request that you affirm commerce's reasonable determination here that was based on the best available information. Thank you. This is Sharon, you have some of the minutes. Yes, thank you, your honors may please this honorable court. I'm Roger Shagrin. I'm Sharon, associate on behalf of them drilling at all. Let me just start with the standing issue. I don't I don't think that there's really any issue of controversy before this court as to whether commerce properly by the time it issued its final scope definition in the drill pipe case made sure that there was absolutely no overlap with the well country to be like this case. If we alter the scope of a net and dump in duty order, can we go back and look at the at the support determination and change that as well? I don't believe so and that's why I want to address that your honor. And that is because as this court is well aware scope is not only set initially in the following the petition by the petitioners and then commerce says initiation, which is the only time they determine industry support. But even after a final scope is established in any dumping duty order, it is often refined further through scope clarification request through scope circumventions. And if this court were to adopt the request by plaintiff here, you would set up a new precedent that commerce should have to constantly go back and determine industry support as scope evolves. And I believe the law is quite clear that commerce has an obligation to determine whether there is sufficient industry support to initiate a petition based upon the scope at the time of commerce's initiation. To rule otherwise is to open up an endless series of arguments over industry support. I happen to know having represented more than half the industry in this case and more than half in the OCDG cases. In fact, in this particular case, the issue would be moot anyway, but that's not really the issue before the court
. I'm Roger Shagrin. I'm Sharon, associate on behalf of them drilling at all. Let me just start with the standing issue. I don't I don't think that there's really any issue of controversy before this court as to whether commerce properly by the time it issued its final scope definition in the drill pipe case made sure that there was absolutely no overlap with the well country to be like this case. If we alter the scope of a net and dump in duty order, can we go back and look at the at the support determination and change that as well? I don't believe so and that's why I want to address that your honor. And that is because as this court is well aware scope is not only set initially in the following the petition by the petitioners and then commerce says initiation, which is the only time they determine industry support. But even after a final scope is established in any dumping duty order, it is often refined further through scope clarification request through scope circumventions. And if this court were to adopt the request by plaintiff here, you would set up a new precedent that commerce should have to constantly go back and determine industry support as scope evolves. And I believe the law is quite clear that commerce has an obligation to determine whether there is sufficient industry support to initiate a petition based upon the scope at the time of commerce's initiation. To rule otherwise is to open up an endless series of arguments over industry support. I happen to know having represented more than half the industry in this case and more than half in the OCDG cases. In fact, in this particular case, the issue would be moot anyway, but that's not really the issue before the court. The issue before the court as a legal issue is, should you make a finding that commerce needs to always revisit industry standing every time it makes any clarification scope after initiation. And I think for ample public policy reasons, as well as the way the statute is set up that this court should not make it possible. There is a relatively narrow body of the court case law within there. Is there any case that does we do go back and look, but is there any that goes back and looks after the fact? Your Honor, we've researched that we didn't find any of it. Industry support issues were revisited after either the courts, which has happened many times, or sometimes the parties or the agency itself changed scope language. So it's really a novel argument. I think as the basis and I think council from the Department of Justice and Excellence job on this, there is no overlap in the end between these scopes. And I think commerce did a sufficient job of clarifying that by excluding any green tube for OCDG and by putting in these. Good question, sir. Good value issue. I'm sorry. I would love to your honor
. The issue before the court as a legal issue is, should you make a finding that commerce needs to always revisit industry standing every time it makes any clarification scope after initiation. And I think for ample public policy reasons, as well as the way the statute is set up that this court should not make it possible. There is a relatively narrow body of the court case law within there. Is there any case that does we do go back and look, but is there any that goes back and looks after the fact? Your Honor, we've researched that we didn't find any of it. Industry support issues were revisited after either the courts, which has happened many times, or sometimes the parties or the agency itself changed scope language. So it's really a novel argument. I think as the basis and I think council from the Department of Justice and Excellence job on this, there is no overlap in the end between these scopes. And I think commerce did a sufficient job of clarifying that by excluding any green tube for OCDG and by putting in these. Good question, sir. Good value issue. I'm sorry. I would love to your honor. And that is really what downhole is arguing is at they just want a lower surrogate value. Remember the status of this case below the CIT found that the initial choice of surrogate value by commerce was not supported by substantial evidence was not sufficiently. But let's assume that you have only the green tube that's going into that particular Indian classification. Isn't is it that it ever really high the average unit value that's in there? No, your honor. I would agree with the final comment made by council for defendant that in order to determine whether something's ever you have to have the possibility of having other good choices to compare it to. And here on remand commerce didn't say let me pick which surrogate value is best, which is what plaintive wanted instead commerce went to the national import specialist for customs and said we want to use your expertise to figure out for this product with these chemistries and alloys seamless product that is unfinished. What's the best HTS remembering that the harmonized air system at the six digit level is the same worldwide. But the effort specialist it appears to me that also he did was confirm that do you quite green to be classified under that particular Indian. And I believe your honor should also say they wouldn't be classified in other classifications that doesn't address the value average unit value. And that wasn't the interest of the NIS and I really don't think it was the interest of commerce to say which value is the best value what they want to do is decide which is the best surrogate value to choose based on all the issues where would the product enter? That is the product that you just select among the quantities or pricing it extends doesn't it? They cannot pick something that's totally unreasonable. That is the right honor. And that's why I think in their decision they did an excellent job
. And that is really what downhole is arguing is at they just want a lower surrogate value. Remember the status of this case below the CIT found that the initial choice of surrogate value by commerce was not supported by substantial evidence was not sufficiently. But let's assume that you have only the green tube that's going into that particular Indian classification. Isn't is it that it ever really high the average unit value that's in there? No, your honor. I would agree with the final comment made by council for defendant that in order to determine whether something's ever you have to have the possibility of having other good choices to compare it to. And here on remand commerce didn't say let me pick which surrogate value is best, which is what plaintive wanted instead commerce went to the national import specialist for customs and said we want to use your expertise to figure out for this product with these chemistries and alloys seamless product that is unfinished. What's the best HTS remembering that the harmonized air system at the six digit level is the same worldwide. But the effort specialist it appears to me that also he did was confirm that do you quite green to be classified under that particular Indian. And I believe your honor should also say they wouldn't be classified in other classifications that doesn't address the value average unit value. And that wasn't the interest of the NIS and I really don't think it was the interest of commerce to say which value is the best value what they want to do is decide which is the best surrogate value to choose based on all the issues where would the product enter? That is the product that you just select among the quantities or pricing it extends doesn't it? They cannot pick something that's totally unreasonable. That is the right honor. And that's why I think in their decision they did an excellent job. They actually had more times doing this on remand than they did in the original investigation. And so they considered and dismissed as did the court below each and every alternative positive by the plaintiffs. And they said all of these other five alternatives put forth are not as good as the one we have chosen and they gave very detailed reasoning. And any case isn't this an invitation to re-weight evidence? This is just an invitation to re-weight the evidence. I think to be honest in case after case involving China this issue of choosing the best surrogate values inherently the most difficult one for the agency to make. We are looking at the case from a denobo point of view. Yes, I understand that you are looking at the evidence to see if the evidence is supported. Correct. And I think you should find that the evidence is supported and yet you should not re-weight the evidence. You should see did commerce give to the court below and to you a sufficient substantial evidence basis for the choice that they made. And I submit to you that's really your standard review. Not whether there could be substantial evidence for any of the other choices that plaintiff has posited
. They actually had more times doing this on remand than they did in the original investigation. And so they considered and dismissed as did the court below each and every alternative positive by the plaintiffs. And they said all of these other five alternatives put forth are not as good as the one we have chosen and they gave very detailed reasoning. And any case isn't this an invitation to re-weight evidence? This is just an invitation to re-weight the evidence. I think to be honest in case after case involving China this issue of choosing the best surrogate values inherently the most difficult one for the agency to make. We are looking at the case from a denobo point of view. Yes, I understand that you are looking at the evidence to see if the evidence is supported. Correct. And I think you should find that the evidence is supported and yet you should not re-weight the evidence. You should see did commerce give to the court below and to you a sufficient substantial evidence basis for the choice that they made. And I submit to you that's really your standard review. Not whether there could be substantial evidence for any of the other choices that plaintiff has posited. You had a time to have a concluding thought. Would you just ask that you uphold the department's remand determination. Thank you. Thank you, Your Honours. Mr. Villanard, you have five minutes. Thank you, Your Honours. There are just three points I'd like to make on re-bottle. One regarding the false comparisons that the Department of Commerce has argued. Two regarding the petition's argument about floodgates. And three regarding commerce's argument there are just a couple of overlaps. Regarding the false comparisons, Department of Commerce and petitioners argue that there is no accurate value that can be used as a reference point
. You had a time to have a concluding thought. Would you just ask that you uphold the department's remand determination. Thank you. Thank you, Your Honours. Mr. Villanard, you have five minutes. Thank you, Your Honours. There are just three points I'd like to make on re-bottle. One regarding the false comparisons that the Department of Commerce has argued. Two regarding the petition's argument about floodgates. And three regarding commerce's argument there are just a couple of overlaps. Regarding the false comparisons, Department of Commerce and petitioners argue that there is no accurate value that can be used as a reference point. But I reiterate the argument about the math regarding Indian HTS category for finished drill pipe and petitioners AUV for their finished drill pipe prices, which although can't be used necessarily as a surrogate value, they can be used to assess the reasonability of commerce's selection. The petitioner can see that the Department of Commerce cannot select an unreasonable surrogate value. And regarding Your Honours' question about re-wanging the evidence, the court has limited ability to re-way evidence. And that is on the standard that whether a reasonable mind could conclude that commerce selected the best available evidence. And is that standard which we are arguing? Regarding the floodgates, excuse me, and Your Honours' question about can we go back? There are two cases that talk about this. Saved domestic oil and PT Pendo Dile, a deli, excuse me. And saved domestic oil, the scope was revisited, was altered, and the industry support was changed. And in PT Pendo Dile, the court said that an argument about the industry support was possible, but in that case, the plaintiff had not raised the argument timely in the investigation. Finally, the Department of Commerce's argument that there are just a couple of overlaps, and there is no case in our tubing green tube that satisfies all three criteria. That argument is wrong for the reasons that we have expressed in our brief, and is wrong for at least 54 green tubes for oil country tubular goods, just based on the generic API industry standards. Thus, we respectfully request that this court, remand with instructions for commerce to select a reasonable green tube surrogate value, and to exclude green tube from the scope of the investigation and from the calculation of industry support.
On our docket today, scheduled for oral argument, we have two cases that have been submitted on the briefs. Our first case is down hold pipe and equipment versus US. Council ready. Mr. Linhart. Your honors. Good morning. My name is Mark Lennart. I represent down hold pipe and equipment and DP master manufacturing. Our briefs contain several arguments, all of which are Ameritoreous and deserving of your attention. But in my presentation, I'd like to focus on two despositive aspects of the arguments. First, regarding the $5,000 surrogate value for green two, key comparisons found on page 13 of our reply brief, that established that no reasonable mind could conclude that commerce selected the best available information. On page 56 of the blue brief, down hold says, commerce's statement that record evidence demonstrates that P110 and J's last K55 OCPG cannot be used to produce drill pipe is simply wrong. And that either P10 or J's last K55 with proper chemistry could be used to produce drill pipe. Where are the record examples of this being done in the industry? There are no concrete examples on the record, but in the so it's a turning argument and nothing else. Not exactly, Your Honor, in the 2002 and in the the ITC's investigation of OCPG from several countries. In those proceedings, the green tube producers argued to the ITC that green tube was a commodity product and essentially could be used interchangeably at the green tube stage. So the essence of your argument is that green tube can't fall into two different categories? Well, the green tube, that green tube for oil country tubular goods, which includes casing tubing and drill pipe, is essentially the same. You have different requirements for different types of drill pipe, oil casing and tubing, but these requirements overlap among the different products. They overlap, but they're not the same, are they? They are the same in many instances. In terms of, you know, there are two instances here. One is the API standard, which is the industry standards. And in those, there are direct overlap with all the three criteria in the Commerce's scope. For at least half of the API standards, but the scope isn't just API standards. It's also proprietary standards. So the overlap is much wider than that. It didn't commerce in this case, take steps to make sure that there was no overlap with the existing orders. That's what they say, Your Honor, but what they did was invalid. And it goes to the definition of oil country tubular goods in the language in the scope. Oil country tubular goods includes drill pipe casing and tubing. In the OCTG from China order investigation, the petitioners in their petition requested that the scope language say OCTG, including only casing and tubing, but commerce did not include that limiting language in the scope. Commerce in the initiation and in the final scope language says OCTG, including casing and tubing. The scope language also includes unfinished oil, unfinished OCTG, including green tube. And only specifically excludes real pipe. It does not exclude unfinished real pipe, which is green tube used to produce oil country tubular goods, real pipe casing and tubing. But in this case, commerce defined the scope as not including, any unfinished tubes for casing or tubing covered by any other anti-dumping or counter-vailing duty orders. Sure, but the problem with that is, if you'll excuse the simplicity of this analogy, it's like saying that there is an anti-dumping order against rectangles from China. And then commerce begins a new investigation of squares and triangles from China, excluding any squares covered by a previous order. All squares are rectangles, and you can't carve that out of the rectangle order, just like you can't carve out a drill pipe green tube from an order that covers green tube for all oil country tubular goods. Well, you don't have any problem then, because if it's a total overlap, your objectionist is valid and you don't have a problem, right? Well, the difficulty is that when green tube is included in the scope and in the calculation of industry support, then the industry support calculation is off. For commerce to initiate an investigation, it requires at least 25% of the domestic industry by volume supporting the petition. And when this, when the production volume for green tube is excluded from the industry support order, you don't see the same result from the calculation as commerce had when it initiated the order. So even if we were to find in your favor, you saying that there's authority to go back and that this would affect the standing decision of ITC? I'm not sure what you understand. I'm not sure I understand what you mean by the standing. Well, the industry support, you use industry support to establish standing, correct? Ring of petition? Sure. Okay, that's what I'm talking about. Yeah, there's authority. The industry support argument, when that is the issue, then you were arguing about it after the orders in place, but the result is from the beginning. The statement of administrative action, are both two separate distinct determinations. I see the link, but aren't they distinct? No, they are distinct. I mean, the Department of Commerce is going to establish the domestic industry and then the ITC is looking at the like product. And so, or the domestic product and the like product. So, but the domestic industry support calculation and determination is solely with the Department of Commerce. Regarding the green tube surrogate value, the basic principle here is that an input should not be valued higher than the finished product. On page 13 of the reply brief, it lists, it has a table with several of the alternate surrogate values on the record. And also petitioners are the average unit value of petitioners 2006, 2008, finished real pipe, finished real pipe prices. And what you see here is the $5,000 surrogate value for the green tube input, compares to among other things the $2,500 Indian HTS category for finished real pipe. Oh, sorry. What page did you see? This is page 13 of the reply brief. Okay. Here, that comparison shows that commerce has valued the input at double the value of the finished product. Considering also that unconferverted industry expert testimony on the record establishes the value of green tube at 30% of the value of the finished product. That comparison then becomes even more stark with when looking at a $5,000 value of the green tube surrogate value in the $2,500 value of the Indian HTS category for finished real pipe. The comparison with petitioners AUV for finished real pipe contrasts similarly. With these numbers, the CIT says your argument in this area is entirely conjectural. Well, the conjectural argument I believe was in relation to the national import specialist memo by the Department of Commerce. But what the court said in relation to the green tube surrogate value in this comparison with the HTS category for finished real pipe is that the value of the finished real pipe is the value of the finished real pipe. That commerce had adequately addressed our argument about the disparity in the values by establishing that there was more than just finished real pipe in the Indian HTS category. But that that analysis does not address how the Indian HTS category can be used in terms of a reference point for the value of green tube. The petitioners, well, let me begin with the Department of Commerce. They argue that the best available information is the standard. But the Department of Commerce argued that we could not compare the $5,000 SUV with the $5,000 SUV with the petitioners' average in the values of their finished real pipe prices because those are that information is not public. But the regulation they rely upon only relates to surrogate value selected not to information that is used to assess the reasonability of a surrogate value. And it only expresses a preference saying that the secretary normally will use public information. The petitioners have a more direct argument about the Indian HTS category and the value there. They say that the value is dragged down by non finished real pipe products or non-drill pipe products. And so it's no longer usable as a comparison, but the math simply doesn't work out there. The evidence on the record establishes that at least half of the entries in the Indian HTS category for drill pipe include semi finished real pipe and finished real pipe. Now in regards to semi finished real pipe, the uncontroverted industry expert set the value of green tube at about 60% of the value. So for unfinished or semi finished real pipe, it would require a 40% reduction to get to the value of green tube with finished real pipe. It's a 70% reduction on the value. And what you have then is essentially about 50 or so reduction in the value of just the semi finished and finished real pipe. Mr. Leonard, are the price points for finished real pipe public information? Not for petitioners, a.V. a finished real pipe. No, but we submit that it can be why was a.V. appropriate for commerce to consider in this. We're absolutely appropriate to consider as a reference point to assess the reasonability of the surrogate value selective. You know, just using as comparison is not going to make that information public. Well, if we were to assume the most extreme circumstance or hypothetical with petitioners argument that the remaining 50% of the entries under the Indian HTS category for drill pipe, if their value was zero. Then that would essentially be a 50% reduction in the prices or the average unit value of the semi finished and finished real pipe. That is essentially equivalent to the downward or the downward adjustment that would be required. So what the Indian finished real pipe category does is establish the extreme ceiling for a reasonable value of real pipe or excuse me of green tube. And thus when you compare with the $5,000 surrogate value, that's a double what the extreme ceiling could be. Because no reasonable mind could conclude that $5,000 remand surrogate value is the best available information. This court should remand to commerce to select a reasonable surrogate value. Mr. Tet. Thank you. Thank you. I'll address the scope argument first as I think everything flows from that. Oh, you're not having flow jokes. No, you're on earth. Thank you. This will now flow better because of the joke. May it please the court? Council is absolutely correct that OCTG, oil country, tubular goods, actually encompasses casings and tubing as well as drill pipe. However, within the industry, as well as within the harmonized care schedules utilized by subscribing nation. Those two categories of OCTG are separate and distinct. And the green tube that is used for those two categories of the greater heading of OCTG are separate and distinct as well. They're separate and distinct in mechanical properties, chemical properties, physical dimensions, and as well as their ultimate end use. In which case, the original order that pertains to OCTG casings and tubing and in parentheses and unfinished OCTG, including green tube, refers to green tube used for the casings and tubing covered by that order. Those green tubes would not be used to manufacture or produce green tube used for drill pipe. So unfinished drill pipe, which is covered by the drill pipe order is different than the unfinished OCTG covered by the OTCG order. In which case, the two orders are actually separate and distinct and cover separate. Well, given a fix of the agency plugged in, which was say, okay, we're excluding everything from the prior order. I don't see the problem anymore. Thank you, Your Honor. And that was done to ensure that there were no problems, no overlap. While downhole pipe and DP master have presented the court with a couple of OCTG products that have certain of the characteristics of green tube for drill pipe, not one of them contains all characteristics. So there's no overlap here with respect to the order. And if there's no overlap with respect to the products covered by the two separate and distinct orders, there can be no issue regarding industry support. It need not be revisited at all. Now, with respect to the aberantly high values that DP master and downhole attributes to the AUV or the SB for subheading 73,04,2059, 90, I apologize. All the numbers are. And this is under the Indian HTS. That's correct, Your Honor. But on the six digit level, there's no distinction between the Indian HTS and the US HTS. They are the same at that level. There is a difference between the Indian. It doesn't mean they include the same product. At the six digit level, that's what that should mean. Because the harmonized error schedule was designed to a permit trader throughout the world to know what they're trading and where they're only at the six digit international level, those goods would be categorized. Now, distinction is a car at the eight digit level. So there is one thing that we're certain of here. There's no dispute that green tube for drill pipe is not drill pipe. It's simply not drill pipe. It is not unfinished drill pipe of the kind that could be categorized with the finished drill pipe. And that's because it doesn't have the essential characteristics of the finished product. And so green tube for drill pipe cannot be categorized with the unfinished product that has the same characteristics as the end product or the end product itself. Can you can you address the argument that your opponents are making with respect to domestic industry support. Hardly. For. I apologize your honor. I didn't understand the question with respect to the scope for with respect to classification or character categorization of these goods within the argument is that that once. Once the green tube is excluded from the anti dumping duty order that you got to go back and you got a fix the industry support determinates. Well, your honor had asked a question regarding standing and this court is previously held that commerce has broad discretion with respect to determining standing. Here, the industry support for the green drill pipe green tube was or for drill pipe was from drill pipe producers as well as those people who purchase green tube and ultimately produce it. There. I don't believe that there are any reason to we exclude the green tube from the anti dumping duty order. Does that affect or should it affect the domestic industry support determination that was made specifically the requirement to achieve a certain domestic support in order to bring a petition. No. I don't believe so. And well, it depends what you mean by green tube. Well, and that's what I thought I had addressed up front and I apologize your honor because I thought I had addressed that earlier on. Here answer that that commerce is identification of three physical characteristics, distinguished and automatically segregates the one green tube from the other green tube within the scope determination. That is precisely the argument that we're making to the court today in which case there is no disruption with respect to the industry support. There is no overlap between the two orders. And so even still commerce would have had broad discretion and determining industry support to begin with. And here they have almost the entirety of the drill pipe industry within the United States encompassed as petitioners. So I'd like to conclude that I only have 30 seconds, 35 seconds left here with the advertley high argument. The advertley high argument is actually a false comparison because you have to assume that those numbers are accurate. There's actually no reliable information within the record to demonstrate that the numbers 5,000 or 2500 are actually accurate for purposes of comparing them to each other. And for all these reasons, your honor, we would your honor. We would request that you affirm commerce's reasonable determination here that was based on the best available information. Thank you. This is Sharon, you have some of the minutes. Yes, thank you, your honors may please this honorable court. I'm Roger Shagrin. I'm Sharon, associate on behalf of them drilling at all. Let me just start with the standing issue. I don't I don't think that there's really any issue of controversy before this court as to whether commerce properly by the time it issued its final scope definition in the drill pipe case made sure that there was absolutely no overlap with the well country to be like this case. If we alter the scope of a net and dump in duty order, can we go back and look at the at the support determination and change that as well? I don't believe so and that's why I want to address that your honor. And that is because as this court is well aware scope is not only set initially in the following the petition by the petitioners and then commerce says initiation, which is the only time they determine industry support. But even after a final scope is established in any dumping duty order, it is often refined further through scope clarification request through scope circumventions. And if this court were to adopt the request by plaintiff here, you would set up a new precedent that commerce should have to constantly go back and determine industry support as scope evolves. And I believe the law is quite clear that commerce has an obligation to determine whether there is sufficient industry support to initiate a petition based upon the scope at the time of commerce's initiation. To rule otherwise is to open up an endless series of arguments over industry support. I happen to know having represented more than half the industry in this case and more than half in the OCDG cases. In fact, in this particular case, the issue would be moot anyway, but that's not really the issue before the court. The issue before the court as a legal issue is, should you make a finding that commerce needs to always revisit industry standing every time it makes any clarification scope after initiation. And I think for ample public policy reasons, as well as the way the statute is set up that this court should not make it possible. There is a relatively narrow body of the court case law within there. Is there any case that does we do go back and look, but is there any that goes back and looks after the fact? Your Honor, we've researched that we didn't find any of it. Industry support issues were revisited after either the courts, which has happened many times, or sometimes the parties or the agency itself changed scope language. So it's really a novel argument. I think as the basis and I think council from the Department of Justice and Excellence job on this, there is no overlap in the end between these scopes. And I think commerce did a sufficient job of clarifying that by excluding any green tube for OCDG and by putting in these. Good question, sir. Good value issue. I'm sorry. I would love to your honor. And that is really what downhole is arguing is at they just want a lower surrogate value. Remember the status of this case below the CIT found that the initial choice of surrogate value by commerce was not supported by substantial evidence was not sufficiently. But let's assume that you have only the green tube that's going into that particular Indian classification. Isn't is it that it ever really high the average unit value that's in there? No, your honor. I would agree with the final comment made by council for defendant that in order to determine whether something's ever you have to have the possibility of having other good choices to compare it to. And here on remand commerce didn't say let me pick which surrogate value is best, which is what plaintive wanted instead commerce went to the national import specialist for customs and said we want to use your expertise to figure out for this product with these chemistries and alloys seamless product that is unfinished. What's the best HTS remembering that the harmonized air system at the six digit level is the same worldwide. But the effort specialist it appears to me that also he did was confirm that do you quite green to be classified under that particular Indian. And I believe your honor should also say they wouldn't be classified in other classifications that doesn't address the value average unit value. And that wasn't the interest of the NIS and I really don't think it was the interest of commerce to say which value is the best value what they want to do is decide which is the best surrogate value to choose based on all the issues where would the product enter? That is the product that you just select among the quantities or pricing it extends doesn't it? They cannot pick something that's totally unreasonable. That is the right honor. And that's why I think in their decision they did an excellent job. They actually had more times doing this on remand than they did in the original investigation. And so they considered and dismissed as did the court below each and every alternative positive by the plaintiffs. And they said all of these other five alternatives put forth are not as good as the one we have chosen and they gave very detailed reasoning. And any case isn't this an invitation to re-weight evidence? This is just an invitation to re-weight the evidence. I think to be honest in case after case involving China this issue of choosing the best surrogate values inherently the most difficult one for the agency to make. We are looking at the case from a denobo point of view. Yes, I understand that you are looking at the evidence to see if the evidence is supported. Correct. And I think you should find that the evidence is supported and yet you should not re-weight the evidence. You should see did commerce give to the court below and to you a sufficient substantial evidence basis for the choice that they made. And I submit to you that's really your standard review. Not whether there could be substantial evidence for any of the other choices that plaintiff has posited. You had a time to have a concluding thought. Would you just ask that you uphold the department's remand determination. Thank you. Thank you, Your Honours. Mr. Villanard, you have five minutes. Thank you, Your Honours. There are just three points I'd like to make on re-bottle. One regarding the false comparisons that the Department of Commerce has argued. Two regarding the petition's argument about floodgates. And three regarding commerce's argument there are just a couple of overlaps. Regarding the false comparisons, Department of Commerce and petitioners argue that there is no accurate value that can be used as a reference point. But I reiterate the argument about the math regarding Indian HTS category for finished drill pipe and petitioners AUV for their finished drill pipe prices, which although can't be used necessarily as a surrogate value, they can be used to assess the reasonability of commerce's selection. The petitioner can see that the Department of Commerce cannot select an unreasonable surrogate value. And regarding Your Honours' question about re-wanging the evidence, the court has limited ability to re-way evidence. And that is on the standard that whether a reasonable mind could conclude that commerce selected the best available evidence. And is that standard which we are arguing? Regarding the floodgates, excuse me, and Your Honours' question about can we go back? There are two cases that talk about this. Saved domestic oil and PT Pendo Dile, a deli, excuse me. And saved domestic oil, the scope was revisited, was altered, and the industry support was changed. And in PT Pendo Dile, the court said that an argument about the industry support was possible, but in that case, the plaintiff had not raised the argument timely in the investigation. Finally, the Department of Commerce's argument that there are just a couple of overlaps, and there is no case in our tubing green tube that satisfies all three criteria. That argument is wrong for the reasons that we have expressed in our brief, and is wrong for at least 54 green tubes for oil country tubular goods, just based on the generic API industry standards. Thus, we respectfully request that this court, remand with instructions for commerce to select a reasonable green tube surrogate value, and to exclude green tube from the scope of the investigation and from the calculation of industry support