[00:00:00] Speaker ?: OK, good. [00:00:01] Speaker 03: So the next argued case, number 21, 2312, Hyundai Electric and Energy Systems against the United States. [00:00:10] Speaker 03: Mr. Buberta. [00:00:13] Speaker 06: Good morning, Your Honors, and may it please the Court, substantial evidence supports Congress's first remand determination that Hyundai did not cooperate with the visibility in the review and total adverse facts available was appropriate. [00:00:27] Speaker 06: Court of International Trade substituted the judgment for that of the Commerce Department when it instructed Commerce to apply only partial neutral facts available rather than total adverse facts available. [00:00:38] Speaker 06: This dispute arose because Commerce found that Hyundai had treated parts differently in the reporting of its home market sales. [00:00:49] Speaker ?: And so it sent out a request for documents for five home market sales. [00:00:56] Speaker 06: Commerce found that Hyundai omitted from the reported price in certain sales home market in-scope merchandise, thereby understating the home market price and resulting in an understatement of dumping margin had they used those sales for the calculation. [00:01:14] Speaker 06: The CIT agreed with Commerce that the missing information should have been reported and that Commerce was not required to seek additional [00:01:21] Speaker 04: Can I ask you a couple questions about the facts? [00:01:24] Speaker 04: As I understand it, Hyundai provided six sequences, right, six sales. [00:01:30] Speaker 04: And there was a finding of errors, I think two errors in one of those sales. [00:01:35] Speaker 04: Do I have that correctly? [00:01:37] Speaker 06: You do, Your Honor. [00:01:39] Speaker 06: The nature of the error was methodological nature. [00:01:44] Speaker 06: And commerce, where commerce and the CIT differ, [00:01:48] Speaker 06: is that commerce treated the mistake as methodological and likely affecting a significant portion of the home market sales database that was not documented and as evidence of failure to cooperate with what the IP viewed Hyundai's mistake as limited. [00:02:06] Speaker 03: I'm going to come from the scope. [00:02:07] Speaker 03: Can I call you back? [00:02:09] Speaker 06: and potentially affecting only a few sales rather than evidence of a broader failure to cooperate. [00:02:15] Speaker 06: The record shows, however, that Hyundai's reporting error arose because Hyundai misunderstood, misapplied, or ignored the scope language that any merchandise attached to, imported with, or invoiced with the active parts of the transformer were in scope merchandise that's probably should be included in the recorded gross unit price for the transformer. [00:02:38] Speaker 06: And in fact, Hyundai [00:02:40] Speaker 06: confirmed in its brief to this court that it believed in good faith that the parts were non-foreign-like product and misreported accordingly. [00:02:48] Speaker 06: This confirms the mistake was methodological in nature. [00:02:51] Speaker 04: What is the significance of it being just one sale? [00:02:54] Speaker 04: I mean, as I understand it, the CIT was concerned that there wasn't substantial evidence for a total adverse facts available determination or total facts available determination. [00:03:07] Speaker 04: Instead, it should have been maybe partial because of the [00:03:12] Speaker 04: I guess disconnect between the number of errors, which was just two in one sale, versus the amount of data provided. [00:03:22] Speaker 04: That's kind of how I understand it. [00:03:24] Speaker 04: And so what do you say about how that line should be drawn? [00:03:29] Speaker 04: And what sort of evidence do you think there is that's, anyway, just where should we draw that line? [00:03:36] Speaker 04: I guess the biggest question. [00:03:38] Speaker 06: So it depends on what the kind of mistake is. [00:03:41] Speaker 06: In this case, it was methodological, meaning it could be inferred that it was applied across all reporting as opposed to some sort of one-off mistake. [00:03:52] Speaker 06: And Hyundai admits it misapplied the scope in deciding what to report. [00:03:59] Speaker 06: And so the substantial evidence that commerce found that led it to [00:04:05] Speaker 06: treat this as methodological instead of a simple one-off mistake was that first it said there was inconsistent reporting. [00:04:16] Speaker 06: Then it looked at the actual sales documentation. [00:04:19] Speaker 06: The sales documentation for that sales said these parts were part of the main transformer, thereby meeting the scope language of being part of, connected to, invoiced with, et cetera. [00:04:32] Speaker 02: What, however, is the record evidence on how many other sales had those parts, those two parts? [00:04:40] Speaker 06: We don't know. [00:04:42] Speaker 06: Well, first of all, it's a misapplication of the scope. [00:04:46] Speaker 06: So there could have been other similar parts that were connected to invoice with, et cetera, with the sale. [00:04:55] Speaker 06: So limiting the inquiry to just those two parts is not broad enough, and that was part [00:05:02] Speaker 06: commerce is concerned. [00:05:04] Speaker ?: They couldn't know what they didn't know about those other sales. [00:05:08] Speaker 06: I mean, Chief Judge Barnett specifically said, well, it's kind of speculative as to whether. [00:05:16] Speaker 06: But it's too speculative to say that there was no evidence that there were likely other misreporting when Hyundai had said, we misapplied the scope. [00:05:28] Speaker 06: We misunderstood the scope. [00:05:30] Speaker 06: And so there could have been, and Congress pointed out, they didn't know how many change orders there were in the undocumented sales, which was a significant portion of the sales. [00:05:39] Speaker 06: They didn't know what other parts might similarly have been misapplied based on Hyundai's misreading or misapplication of the scope. [00:05:49] Speaker 06: And it's important to remember, too, that this wasn't the first administrative review in which Hyundai was interpreting the scope. [00:05:56] Speaker 06: It was the fourth. [00:05:58] Speaker 04: What legal authority do you have to assert that commerce can rely on misreporting in prior review periods to infer that a party didn't act to the best of its ability? [00:06:11] Speaker 06: I think we have pages 18 and 19 of our brief. [00:06:18] Speaker 06: But this court is going under the SFK phase [00:06:22] Speaker 06: You know, it is relevant for the court to look at and for Congress to look at the knowledge and experience of a respondent when it's applying AFA to determine whether it's active to the best of its ability. [00:06:39] Speaker 06: And in this case, in the immediate following of review, the court found that Hyundai had made similar errors of inconsistencies [00:06:51] Speaker 06: and misreporting, and applied AFA, and this court, on Rule 36, supported that, you know, based on the judge's request. [00:07:00] Speaker 04: But in Rule 36, we can't read Rule 36 affirmances as suggesting that we've affirmed on all grounds, right? [00:07:06] Speaker 06: No, we can't. [00:07:08] Speaker 06: But the Court of International Trade found that it did create a similar mistake. [00:07:15] Speaker 06: And commerce is entitled [00:07:17] Speaker 06: to take that into account when deciding whether Hyundai had given its best. [00:07:21] Speaker 04: Did Commerce, though, take that into account? [00:07:23] Speaker 04: I didn't see Commerce relying on that at all in its reasoning for why it was going to determine that Hyundai didn't act to the best of its ability. [00:07:33] Speaker 04: I don't see that in the Commerce's opinion. [00:07:38] Speaker 06: It is, in fact, in the initial determination. [00:07:43] Speaker 06: And it's mentioned. [00:07:45] Speaker 04: Do you want to give me a site? [00:07:47] Speaker 04: Maybe I just missed it. [00:07:49] Speaker 06: Yep. [00:07:50] Speaker 06: Let me just find that, if you'll give me a second. [00:07:53] Speaker 06: I'll just drop. [00:07:55] Speaker 05: Maybe I should just point out in their comment on the first reading determination. [00:08:13] Speaker 02: If you said a page number, we did not hear that. [00:08:16] Speaker 02: Council. [00:08:16] Speaker 05: Yeah, I'm sorry. [00:08:17] Speaker 05: I think I must apologize to you. [00:08:19] Speaker 05: I'm looking for that specific funding. [00:08:28] Speaker 06: So in the first three million results at 18, which means a plenty of state funding. [00:08:38] Speaker 04: I'm having a hard time hearing you right now. [00:08:41] Speaker 04: Could you could you maybe? [00:08:43] Speaker 04: Look, maybe yes, that's better when you're looking forward. [00:08:48] Speaker 06: It is easier to hear you Okay, I appreciate that side for the inconvenience. [00:08:53] Speaker 06: Could you? [00:08:53] Speaker 06: The page side is appendix triple zero 81 and [00:09:01] Speaker 06: It's the first remand results at 18, where commerce found that they committed similar and consistent treatment of products in the hallmark in the prior third administrative review, which was affirmed by the Court of International Trade. [00:09:18] Speaker 06: So that sort of repetition of error indicates, at best, a pattern of carelessness, and at worst, a more deliberate pattern of misreported repetition of that same sort of error. [00:09:31] Speaker 06: taken as substantial evidence that Hyundai was not cooperating to the best of its ability in this review. [00:09:38] Speaker 06: So based on this substantial evidence, which Commerce cited of methodological mistakes or carelessness, it would be every bit as speculative for the court to assume that there were no errors in the larger pool of undocumented sales. [00:09:55] Speaker 06: And more critically, [00:09:58] Speaker 06: The burden of providing the complete and accurate record lay on Hyundai, the party in control of that information. [00:10:04] Speaker 06: The gap in the record, which was an inability to determine the accuracy of the undocumented sales in light of the evidence of methodological or careless errors, was caused by Hyundai's failures to properly apply the scope. [00:10:19] Speaker 06: The corollaries to commerce's obligation to calculate an accurate dumping margin is that the respondent has to fully and completely [00:10:27] Speaker 06: report and accurately reports requested data and where it does not it can't be allowed to benefit from its own lack of cooperation and that's enshrined as an important part of the explanation for the F.A. [00:10:40] Speaker 06: provision in the statement of administrative action to the statute the entire efficacy of the law depends on this and Congress was entitled to determine based on that evidence that in fact [00:10:57] Speaker 06: Hyundai had not met its burden. [00:10:59] Speaker 06: If it hadn't met its burden here, then it hadn't met its burden in terms of 19 USC 1677 ME either, another point that the court took. [00:11:13] Speaker 02: Other than the history that you cite, what, if any, other evidence is there that Hyundai failed to cooperate to the best of its ability in this review? [00:11:25] Speaker 06: It said that it applied the scope language in making its determination of what to report. [00:11:31] Speaker 02: But what was there to support a finding that that was anything other than a good faith mistake? [00:11:39] Speaker 06: Well, one, good faith is intense. [00:11:43] Speaker 06: It's not something that the statute recognizes under the Nippon standard. [00:11:47] Speaker 06: It's whether you made your best effort. [00:11:51] Speaker 06: And just because they say it's in good faith, [00:11:53] Speaker 06: And when you look at their sales document, that sales document specifically said they handed that document to Commerce, and they never pointed out that, oh, we made an error, and now Commerce had to point that error out to them. [00:12:12] Speaker 06: I would liken this case closer to a case I know Judge Phil is familiar with, the Goodluck case, that they failed to follow an instruction. [00:12:22] Speaker 06: It was methodological. [00:12:24] Speaker 06: And therefore, they failed to follow the instruction, which was the scope instruction of what should be in and what should be reported. [00:12:32] Speaker 06: And having failed to do that, it was fair for Commerce to be concerned that the rest of the undocumented sales were similarly not accurately reported. [00:12:45] Speaker 06: I see that I've used most of my rebuttal time. [00:12:48] Speaker 06: Before it has other questions, I'll reserve the remainder of my time. [00:12:52] Speaker 03: Well, we'll save your time. [00:12:54] Speaker 03: Is there anything else you need to tell us at the moment? [00:12:58] Speaker 05: No, Your Honor. [00:13:00] Speaker 05: I think that's covered the main point that I intended to do with the court. [00:13:04] Speaker 05: OK. [00:13:05] Speaker 05: Thank you. [00:13:05] Speaker 05: We'll hear from the other side. [00:13:08] Speaker 03: Take us again, Your Honor, if you're ready. [00:13:10] Speaker 01: Thank you, Judge Newman. [00:13:12] Speaker 01: May it please the court. [00:13:14] Speaker 01: Your Honors, Appellant asks the Court to issue a drastic decision permitting the Commerce Department to reject the entirety of Hyundai's reporting in light of a limited aspect of one sale that accounted for a minor portion of the price of that sale. [00:13:33] Speaker 01: This is fundamentally unreasonable, particularly because Appellant's argument is based entirely on speculation. [00:13:41] Speaker 01: And it fails to support that argument with any evidence on the record. [00:13:46] Speaker 01: In light of the record, in light of the standard of review, and in light of the CIT's informed opinion based on a detailed review of the record, the only reasonable outcome is to affirm Commerce's second remand and reject Appellant's appeal in its entirety. [00:14:03] Speaker 02: Can we consider Commerce's historical experience with Hyundai and other administrative reviews? [00:14:09] Speaker 01: Your Honor, we cannot, under the relevant legal authority, the commerce is required to take only the evidence on the record of the immediate proceeding into account. [00:14:22] Speaker 04: In fact- What legal authority are you talking to? [00:14:26] Speaker 01: Thank you, Your Honor. [00:14:27] Speaker 04: Let me just- I figured you were going to get to it. [00:14:29] Speaker 01: Yes. [00:14:31] Speaker 01: The case that is relevant. [00:14:41] Speaker 01: Is Kingdow Sea-Line Trading Company be United States from this court in 2014, 76F3, 1378, 1387? [00:14:49] Speaker 01: Quote, each administrative review is a separate exercise of Congress's authority that allows for different conclusion based on different facts in the record. [00:14:59] Speaker 04: Was that a case that dealt with specifically whether Congress was able to look at a party's behavior in prior reviews to determine either whether facts available would apply, or whether adverse facts available would apply, or how to estimate that party's [00:15:18] Speaker 04: sales numbers make an inference, an adverse inference, for example. [00:15:22] Speaker 01: Thank you, Judge Stoll. [00:15:23] Speaker 01: I do not offhand recall if it was an AFA case in particular. [00:15:26] Speaker 01: However, the legal standard applies irrespective of the fact of the case, which is the review must stand on its own. [00:15:32] Speaker 01: It's one review, and that's the record that commerce can look to. [00:15:36] Speaker 01: Here, there is nothing on the record aside from the one document that the Court of International Trade concluded justified limited use of neutral facts available would justify total facts available or an adverse inference. [00:15:50] Speaker 01: The case must stand on the record. [00:15:53] Speaker 01: And again, appellant has failed to cite to any evidence on the record. [00:15:56] Speaker 01: I didn't hear one citation to the appendix of the administrative record aside from the single documented issue [00:16:02] Speaker 01: that suggests that there is any kind of broad methodological undermining of the reliability of Hyundai's evidence at issue here. [00:16:10] Speaker 01: So even though this court reviews de novo, [00:16:14] Speaker 01: the commerce determination, it does take the CIT's decision. [00:16:19] Speaker 01: It gives a great weight to its informed opinion. [00:16:21] Speaker 01: And it is always the starting point of its deliberation of the case. [00:16:25] Speaker 01: And in this case, the CIT looked at that record. [00:16:29] Speaker 01: Hyundai submitted complete data for the entirety of its home market sales database. [00:16:34] Speaker 01: It submitted thousands of sales documents at commerce's request that supported over half of the sales in the database. [00:16:41] Speaker 01: And yet only one sale, two components of one sale reflected in one document supported the CIT's conclusion that partial facts available were warranted, and that substantial evidence did not support total facts available. [00:16:57] Speaker 04: Just for clarity on the facts, I'm a little confused only because I thought that they were asked for five sequences, and they provided six. [00:17:05] Speaker 04: And now you are saying an entire database full of lots of sales. [00:17:09] Speaker 04: Could you give a little bit more detail on how many sales we're talking about? [00:17:13] Speaker 04: Are we really talking about six, or are we talking about hundreds? [00:17:16] Speaker 01: Certainly, Judge Sol, thank you. [00:17:18] Speaker 01: There's a total of 25 Transformers sold through 17 sales on the record, right? [00:17:24] Speaker 01: That's the entirety of the data submitted by Hyundai, and that's standard. [00:17:28] Speaker 01: In any administrative review, Commerce will sometimes ask for documents to support that reporting. [00:17:33] Speaker 01: Now, the appellant cited documents for six sales, and that's correct. [00:17:37] Speaker 01: There are an additional eight sales to which Commerce asked for documentation throughout the course of the administrative review. [00:17:43] Speaker 01: So that's how we reach over half of the database, over half of the transactions and the transformers. [00:17:48] Speaker 01: Again, of all those documents, it's only one document, two components, less than 10% of the gross unit price for that transformer. [00:17:56] Speaker 01: Everything else that appellant talks about in terms of a methodological decision is simply not supported by any record evidence, either the documents that are on the record or the other sales for which there are documents not on the record. [00:18:09] Speaker 01: And both the courts and commerce have recognized when there is limited [00:18:14] Speaker 01: a limited error, that does not justify total facts available. [00:18:19] Speaker 01: The Court of International Trade called it impermissible bootstrapping in Fujian to derive the conclusion that from one error, the entirety of a sales database is unusable. [00:18:29] Speaker 01: In fact, commerce itself in other administrative proceedings has found that when there is one error, it does not justify total facts available. [00:18:38] Speaker 01: And that ties directly to the legal standard for total versus partial. [00:18:42] Speaker 04: It isn't a bright line rule, though. [00:18:44] Speaker 04: I mean, I understand what you're saying. [00:18:46] Speaker 04: In the context of some other cases, though, would you agree that maybe one incorrect sale provision could result in total facts available? [00:18:55] Speaker 04: But in this case, it doesn't. [00:18:57] Speaker 04: I mean, I just question whether a bright line rule really could apply, although I understand the point of your argument. [00:19:04] Speaker 01: Thank you, Your Honor. [00:19:04] Speaker 01: I'm not advocating for a bright line rule, but these cases are extremely fact specific. [00:19:09] Speaker 01: And the fact remains that, based on other court cases, other commerce precedent, we have not seen an instance, or appellant has not cited an instance, nor again cited any record evidence here, where that single sale could lead to total facts available. [00:19:22] Speaker 01: I would direct, Your Honor, to Mekonde, which this court affirmed in 2014, where the Court of International Trade concluded, and this court agreed, that total facts available is appropriate where none [00:19:34] Speaker 01: None of the reported data is reliable because of pervasive and persistent deficiencies. [00:19:39] Speaker 01: Partial facts available, conversely, is permissible where there is a deficiency only with respect to a discrete category of information. [00:19:47] Speaker 01: And so here, there's no widespread cross-cutting deficiency that appellant has successfully pointed to based on record evidence. [00:19:55] Speaker 01: And indeed, it's telling that a lot of what Appellant argues, both in its briefs and today before the court, relies on road recitation of language from Commerce's first remand that the Court of International Trade itself found to be unsupported by substantial evidence. [00:20:09] Speaker 01: The notion that there is this discrete limited issue that otherwise underscored a significant gap in the record. [00:20:15] Speaker 01: The idea that Hyundai misread the scope of the anti-dumping duty order. [00:20:19] Speaker 01: Or that there was, quote, no basis in the record to calculate gross unit prices for the majority of sales. [00:20:25] Speaker 01: The Court of International Trade rejected all of these broad conclusory statements as unsupported by substantial evidence because they were speculative. [00:20:34] Speaker 01: As this court stated in Lucent Technologies, it is well established that speculation does not constitute substantial evidence. [00:20:42] Speaker 01: In fact, we would direct the court to the portion of the CIT's opinion in Hyundai 2, included at pages 156 to 157 of the appendix, where the CIT explained, from its detailed review of the administrative record involving two remands, [00:20:57] Speaker 01: that the sale at issue amounted to, quote, a limited portion of the document supported home market sales. [00:21:05] Speaker 01: Quote, it is not clear how these two sales undermined the reliability of other documented sales, which did not include parts A or B, and that commerce's decision to apply total facts available on this basis, quote, is simply unsupported speculation and not supported by substantial evidence. [00:21:25] Speaker 01: In sum, the record evidence demonstrates that total FA is not warranted. [00:21:29] Speaker 01: Appellant, again, has failed to cite to any of the record beyond the limited narrow document for that one sale. [00:21:37] Speaker 01: And the court should affirm the second remand with respect to the question of total facts available. [00:21:42] Speaker 01: Just one last point with respect to total facts available. [00:21:45] Speaker 01: Appellant cited 19 US Code 1677M-E. [00:21:49] Speaker 01: We would, again, point [00:21:51] Speaker 01: This court, the Court of International Trade, which summarily demonstrated and discussed how commerce failed to address whether Hyundai's home market sales information did not meet these criteria, went on to discuss how much of Hyundai's information did meet those criteria. [00:22:06] Speaker 01: And ultimately, as Appellant itself acknowledges by citing State Farm, [00:22:11] Speaker 01: where commerce's decision-making process is reasonably discernible than a court shall uphold it. [00:22:17] Speaker 01: But as appellant concedes, commerce itself didn't even cite to that portion of the statute. [00:22:22] Speaker 01: And although appellant attempts to demonstrate how it satisfied it, this is nothing more than post hoc rationalization. [00:22:28] Speaker 02: If we were to determine we could consider the historical experience of commerce with Hyundai, do we have the record in front of us to do that? [00:22:39] Speaker 01: As far as I'm aware on the appendix submitted to the court, the record from all the different reviews that Appellant is citing to is not before this court. [00:22:46] Speaker 01: And again, looking to the prior jurisprudence discussed in Kingdow as well as North's hydrocan, a decision from this court in 2006, this court should not consider that under the appropriate legal standard. [00:22:56] Speaker 01: Second. [00:22:57] Speaker 01: We'd like to talk about an adverse inference. [00:23:00] Speaker 01: There is no legal or factual basis for the application of an adverse inference in this case. [00:23:06] Speaker 01: Now, to apply an adverse inference, as Appellant cited, there's the case of Nippon Steel from this court, which states that [00:23:13] Speaker 01: Commerce may apply an adverse inference where a respondent fails to act to the best of its ability, and what commerce must do is, quote, examine the respondent's actions and assess the extent of respondent's abilities, efforts, and cooperation. [00:23:25] Speaker 01: An adverse inference may not be drawn merely from a failure to respond, [00:23:29] Speaker 01: but only under circumstances in which it is reasonable for commerce to expect more forthcoming responses. [00:23:36] Speaker 01: We also contest Appellant's statement that good faith is wholly irrelevant. [00:23:40] Speaker 01: There's a line of cases from the Court of International Trade, Malek's USA, Mitsui Company, and Bowie Passat, all which explicitly tie the concept of good faith [00:23:49] Speaker 01: to cooperation to the best of one's ability, even recognizing that there's no intent requirement in the statute. [00:23:55] Speaker 01: For example, in Mitsui and Company, the court stated, quote, the record reflects that plaintiffs attempted in good faith to cooperate in this extraordinary review. [00:24:04] Speaker 01: In Bowie Passat, Bowie cooperated fully, providing detailed responses in apparent good faith. [00:24:10] Speaker 01: So when we consider the legal standard for adverse facts available, as well as the facts in this case, we see that they have not been met. [00:24:17] Speaker 01: As an initial matter, the first remand that appellant asks you to restore does not contain the necessary more. [00:24:23] Speaker 01: Commerce did not do more than otherwise state at appendix 81 to 82. [00:24:28] Speaker 01: that Hyundai had the opportunity to provide the information and possessed it, but did not provide it. [00:24:33] Speaker 01: Again, the failure to provide information is the standard for neutral facts available. [00:24:38] Speaker 04: And they did not rely on any prior history with respect to making that determination on adverse facts available. [00:24:45] Speaker 01: Aside from the recitations that Appellants' Council noted, where it said, oh, we recognize or we believe that because Hyundai did this in similar reviews, we're not going to believe it now, no. [00:24:54] Speaker 01: I mean, this quote relates to what Hyundai did on the record of this review. [00:25:00] Speaker 01: And that's the only information that's relevant, Judge Soule. [00:25:05] Speaker 01: Even beyond the legal standard of doing more, the facts also do not support an adverse inference. [00:25:11] Speaker 01: Again, the CIT, which reviewed this record in detail, explained and noted that Hyundai, quote, provided documentation for certain home market sales and a complete breakdown between the merchandise that was in scope and out of scope, along with detailed narrative explanation and supporting documentation for the relevant categorization. [00:25:31] Speaker 01: So the record makes clear that rather than being uncooperative, Hyundai had, again, a good faith belief that these components were not foreign-like products, and it explained why. [00:25:42] Speaker 01: And you can see that explanation, for example, at appendix 12,841 to 12,848, using numerous technical documents to show that in Hyundai's view, these parts were not under the scope of the order. [00:25:54] Speaker 01: Now, the Court of International Trade understood this. [00:25:57] Speaker 01: And because of that, it correctly concluded that Hyundai fully responded to all of Commerce's requests and merely maintained a good faith position with which the department ultimately disagreed. [00:26:08] Speaker 01: Disagreement is not a legitimate legal basis for the application of an adverse inference. [00:26:13] Speaker 01: Finally, and briefly, we just want to note that the Court of International Trade here, contrary to Appellant's argument, properly applied the standard of review. [00:26:22] Speaker 01: Appellant's argument puts forth the idea that the Court of International Trade exceeded its authority. [00:26:27] Speaker 01: However, this court should reject that argument. [00:26:29] Speaker 01: For example, Appellant notes Nippon Steel, a different Nippon Steel from this court from 2006, in which this court stated that under the substantial evidence standard, when adequate evidence exists on both sides, assigning evidentiary weight falls exclusively within the authority of the department. [00:26:46] Speaker 01: That holding is correct, but it doesn't apply here because that evidence does not exist on both sides of the issue, as we've discussed at length and as the Court of International Trade concluded. [00:26:56] Speaker 01: The Court of International Trade wrestled with this evidence over the course of two remands. [00:27:01] Speaker 01: It dug into the record, and it found that based on the substantial evidence, Chief Judge Barnett noted that evidence was insufficient to justify total facts available. [00:27:12] Speaker 01: It was insufficient to justify an adverse inference. [00:27:14] Speaker 01: And he therefore gave the only proper instructions that he could under the standard of review to calculate a margin using partial neutral facts available. [00:27:24] Speaker 01: That is not a substitution of judgment. [00:27:26] Speaker 01: It's a proper analysis under the substantial evidence standard of review. [00:27:30] Speaker 01: And Hitachi has presented no compelling reason for vacating that judgment. [00:27:34] Speaker 01: With that, Your Honors, unless there are any further questions, we respectfully request that this court affirm the Court of International Trade and uphold the second remand, thereby rejecting Hitachi's appeal in its entirety. [00:27:47] Speaker 01: Thank you. [00:27:48] Speaker 03: Any further questions for Thompson? [00:27:53] Speaker 03: No. [00:27:53] Speaker 03: No. [00:27:54] Speaker 03: OK. [00:27:54] Speaker 03: Thank you. [00:27:55] Speaker 03: Then we'll hear from Mr. Liberta. [00:27:59] Speaker 06: Thank you, Your Honor. [00:28:01] Speaker 06: Yes, the CIP rejected [00:28:04] Speaker ?: Uh, Congress's position as speculative. [00:28:08] Speaker ?: And that's why this court has the noble review of what the Commerce Department did. [00:28:12] Speaker 06: And under Altex, uh, the, this court can't uphold the first administrative or the first remand determination. [00:28:22] Speaker 06: Um, what I like to use my time doing now, uh, is to talk about what that substantial evidence is. [00:28:29] Speaker 06: Cause I disagree strongly with my esteemed colleague. [00:28:33] Speaker 06: I disagree with my esteemed colleague on the other side of the bench that there was no substantial evidence on this record. [00:28:42] Speaker 06: First, there was evidence of inconsistency in reporting in this review. [00:28:48] Speaker 06: They admit that they misapplied the language of the scope on the record here. [00:28:53] Speaker 06: And their sales documentation shows that despite that, they continue to argue that the scope language should have allowed it to be in. [00:29:03] Speaker 06: The corporate national trade found they were wrong about that, and they have not appealed that issue. [00:29:09] Speaker 06: It ignored its own sales document. [00:29:11] Speaker 06: And in terms of the experience from the previous reviews, Commerce specifically cited it as a reason that it could not [00:29:22] Speaker 06: take at face value the things that were reported. [00:29:26] Speaker 06: And under this court's decision in Villacero, the court found that it was appropriate to plan for its inferences where a respondent was an experienced company that participated in prior administrative reviews and is knowledgeable of the process and understands what is required to be prepared to participate and provide complete and reliable responses. [00:29:51] Speaker 06: The Commerce Department did cite to that as a reason, and there is precedent for doing that. [00:30:02] Speaker 06: And then the reporting area here, it's kind of reporting area that's involved, that's important. [00:30:10] Speaker ?: This is methodological, and Commerce could determine that across the industry, or across the record, that the same sort of error could ever occur. [00:30:21] Speaker ?: My time is up. [00:30:22] Speaker 06: I appreciate the court's indulgence for allowing me to appear by video and to the clerk's office and my thanks for their assistance in helping me do that. [00:30:33] Speaker 03: Thank you. [00:30:34] Speaker 03: Let me ask if there are any more questions from the panel? [00:30:38] Speaker 04: No. [00:30:38] Speaker 04: Thank you. [00:30:42] Speaker 03: OK. [00:30:42] Speaker 03: Then our thanks to both counsels. [00:30:44] Speaker 03: The case is taken under submission. [00:30:46] Speaker 03: And that concludes the argued cases [00:30:50] Speaker 03: for this panel for today.