[00:00:00] Speaker 00:
So we will hear argument next in number 232391, China Manufacturers Alliance Against United States.

[00:00:12] Speaker 03:
So good morning.

[00:00:13] Speaker 03:
Good morning, your honors.

[00:00:15] Speaker 03:
I'm James Dirling on behalf of the Appellant CMA.

[00:00:19] Speaker 04:
Can you copy us a little bit?

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

[00:00:23] Speaker 03:
I'm James Dirling on behalf of Appellant CMA and Doublecoin.

[00:00:27] Speaker 03:
Before I get into the heart of my argument about substantial evidence, I just want to make clear the parameters of what I'm going to cover in my argument.

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First, in light of this court's decision in Pirelli and the discussion we just had, we are not pursuing the arguments that it was legal error.

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to not consider the export considerations to only factor, consider factor three.

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So the argument that that is legal error has been, in our view, just positively resolved by Pirelli.

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But that leaves as a separate question, when you get to substantial evidence,

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It's substantial evidence for the record as a whole.

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And we will argue that those points are relevant in evaluating the record evidence as a whole.

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The other point I just want to make clear at the outset, just to kind of set the stage, especially in light of the argument we just heard, this is a review of the fifth administrative review.

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This is a decision that Commerce made almost 10 years ago.

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It was May of 2015, literally almost 10 years ago.

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And the state of commerce's law and practice on separate rates was very different at that time.

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So the core issue before the court here, and that's what I now turn to, is the decision 10 years ago as written doesn't pass the substantial evidence test.

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And I submit that it does not.

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And there are two main reasons, and I'll address each in as much detail as you'll allow me.

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The first is the decision as written was logically inconsistent.

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Internally inconsistent decisions cannot pass substantial evidence.

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Second, the decision as written largely ignored the key pieces of evidence that should have been addressed.

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So putting aside the issue of whether it was legal error,

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the way they wrote the decision, we think it does not pass substantial evidence.

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Now let me address each of those two categories of objections.

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First, logical inconsistencies.

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Two points.

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First, commerce in its written decision stresses that the legal environment in China is permissive of independent actions.

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That's the whole reason why it still draws this distinction between de jure, de facto determinations.

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And in particular, the decision as a written stresses

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permissive of independent actions about export activities.

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So that was the relevant legal framework that the decision itself articulated at the time.

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The second key logical premise that Commerce used was it said, we're still applying our four factor test.

[00:03:12] Speaker 02:
So the decision as a... The four factor test is not a balancing test, right?

[00:03:16] Speaker 02:
No.

[00:03:17] Speaker 02:
If you fail one, you fail the test.

[00:03:19] Speaker 02:
Not necessarily, Your Honor, because we... Cite me any case of ours or the CIT, or frankly, ours that says that, because my understanding is commerce's practice has always been consistent that you have to meet all four factors, and it's not a balancing test.

[00:03:35] Speaker 03:
With all due respect, Your Honor, Commerce's test 10 years ago was basically we collect information on all of the factors and we make a decision holistically based on the record as a whole.

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It may be true that in the past 10 years, Commerce has shifted its policy and has become more and more narrow in saying what it will and won't address.

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But we're talking about the decision.

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Can you tell me one instance where Commerce has found that somebody failed one of the factors but nonetheless satisfied the test?

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Well, in the ATM litigation, your honor, the record had information on all four of the factors, but commerce ended up reversing itself based on consideration of just two of the factors.

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But the key point is they gathered information on everything.

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Is that answering my question that they found that you failed a factor on one of those things, but nonetheless they upheld it or just they found it sufficient on the two factors they considered to show lack of control?

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Your honor, I haven't systematically reviewed all of the cases where commerce has granted... Okay, I don't want to spend a lot of time on this.

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Just assume, I think the law is that if you fail one, you fail the test.

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It's not a balancing test.

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If that's the case, then who cares if they consider evidence on all four of the factors if you fail one?

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Because the court still has to decide, was the decision that you failed one supported by substantial evidence?

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Right.

[00:05:00] Speaker 02:
So let's look at that one.

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Because what you failed here is the majority control.

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Because this is not like the cases we were just discussing, where the government entity was a minority shareholder.

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The government entity is a majority shareholder here, right?

[00:05:15] Speaker 02:
That's correct, Your Honor.

[00:05:16] Speaker 02:
Right.

[00:05:17] Speaker 02:
And so that's commerce's rule and has been commerce's rule that if you're the majority shareholder, you don't show independence from the governmental identity.

[00:05:28] Speaker 03:
But Your Honor, with all due respect, that's not true.

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In fact, for this particular company,

[00:05:34] Speaker 03:
for CMA, it was found to satisfy the separate rate requirement in the original investigation, even though, even at that time, there was majority ownership.

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The majority ownership as a per se rule is a recent evolution in commerce practice.

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Commerce gets to change its mind if it has a good reason.

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And clearly, the fact that a government entity has a majority control selects the shareholders who are the shareholders who select the board of directors.

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who select the management is sufficient for government control.

[00:06:06] Speaker 02:
I don't understand why we're talking about the fact that they're changing their mind.

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We're looking at what their analysis is in this case.

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My point wasn't that they changed their mind, Your Honor.

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My point was simply that it is not true that at the time of the Fifth Review, commerce had a per se rule about majority ownership.

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Majority ownership was one of many facts that commerce would consider.

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But here, it's the fact they consider dispositive.

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Yes.

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And in making that decision, Your Honor, they ignored the other elements.

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So two things.

[00:06:36] Speaker 02:
No, no, no, no, no, no.

[00:06:38] Speaker 02:
Stop.

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You agree they relied on the fact that there's majority control here to be dispositive.

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Is that legally incorrect?

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Under Pirelli, it is not legally incorrect.

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OK.

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So now we're faced with a situation where they have relied on a legally sufficient reason.

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You have to show there's a lack of substantial evidence for their factual conclusion that there's majority control here.

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Can you do that?

[00:07:01] Speaker 02:
Yes.

[00:07:02] Speaker 02:
You absolutely think there's a lack of substantial evidence that the government-owned entity has a majority share?

[00:07:10] Speaker 02:
It's undisputed.

[00:07:11] Speaker 03:
No.

[00:07:11] Speaker 03:
Your Honor, here is the distinction.

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What I am attacking is the commerce decision as written.

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And our- I'm not asking you that question.

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I'm asking you the legal- you agreed that majority control is a legal sufficient reason to find you failed factor three.

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if that factual determination about factor three is correct, which is basically- Right, that's what I'm trying to ask.

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What in the record shows that's not actually correct?

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Because the distinction we draw, Your Honor, is commerce now seems to apply a theory that majority ownership means- No, no, no.

[00:07:50] Speaker 02:
The company's- I don't want to go into all of this.

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I want to answer the first question.

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Commerce found that the government entity here is a majority shareholder.

[00:08:00] Speaker 03:
Yes, sure.

[00:08:01] Speaker 02:
Is that correct?

[00:08:02] Speaker 02:
Yeah, are they or are they not a majority shareholder?

[00:08:04] Speaker 03:
They are majority shareholder of the parent company of the US entity, right?

[00:08:08] Speaker 03:
One of the factual distinctions here, your honor, is that we have a US company and you would read that if they were the majority shareholder that that was a legally sufficient

[00:08:19] Speaker 02:
reason to show control.

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More precisely, Your Honor, I accept that Pirelli establishes that it is not legal error for commerce to rely on that factor alone.

[00:08:30] Speaker 04:
Can I just talk at one point?

[00:08:32] Speaker 04:
I don't understand the premise of your argument.

[00:08:34] Speaker 04:
It seems to be that we're going to measure this particular decision by commerce based on the law as it existed 10 years ago.

[00:08:43] Speaker 04:
That seems to be the premise of your argument.

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Yet at the front end, you admit that Pirelli governs a key issue here.

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And Pirelli is well after 10 years ago.

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So I don't understand.

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And your argument that you're framing seems to be a little different from what you said in your brief.

[00:09:01] Speaker 04:
I didn't understand your brief to be making this argument that the test of whether this was correct is measured by the law as of 10 years.

[00:09:11] Speaker 03:
Okay, I guess there are three different things we should distinguish, Your Honor.

[00:09:15] Speaker 04:
One is... What's your answer to my question?

[00:09:17] Speaker 04:
Why don't you give up Pirelli?

[00:09:19] Speaker 04:
then you give up potential control as well as individual actual control.

[00:09:24] Speaker 03:
The fundamental distinction we make with respect to Pirelli, the reason why we think Pirelli is not controlling on this issue, is that Pirelli left open the question, is there in fact substantial evidence supporting commerce's conclusion under factor three, which is more than just

[00:09:42] Speaker 03:
the mere existence of majority ownership, right?

[00:09:47] Speaker 04:
The logic of the fifth review decision was- When the standard says if you flunk one of the four tests, you're finished, even though you won on the other three.

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But your argument is you won on two, and that should affect the argument on three.

[00:10:02] Speaker 03:
No, our argument, Your Honor, our argument is that the commerce finding about factor three, we submit that factor three is more than just literally looking at the majority ownership.

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In other words, we just look at is the majority ownership, pencils down, we don't consider anything else.

[00:10:22] Speaker 04:
At the time- I don't understand what you're saying.

[00:10:29] Speaker 03:
If commerce makes a factual finding that there is majority ownership- Are you saying the law changed?

[00:10:35] Speaker 03:
I'm sorry.

[00:10:35] Speaker 02:
Are you saying the law changed between five and- Commerce- I'm sorry, I don't want to get into the numbers because that's the last case.

[00:10:41] Speaker 02:
But between what the law was on factor three and what the law is now on factor three?

[00:10:46] Speaker 03:
No, commerce practice changed.

[00:10:48] Speaker 02:
And so our point, your honor- What was commerce's practice with regard to your review?

[00:10:53] Speaker 03:
Commerce's practice in our review was that they would

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they would look at all of the factors.

[00:10:59] Speaker 02:
No, I don't want to talk about all the factors.

[00:11:01] Speaker 02:
What was their practice on factor three at your review?

[00:11:06] Speaker 03:
They basically were still looking, Your Honor, at the question, managerial control, but managerial control over what?

[00:11:14] Speaker 03:
And at its crux, our argument about substantial evidence is that even though there was record evidence of

[00:11:22] Speaker 03:
Independence, day-to-day independence about things like setting the US prices, which is by commerce's own terms what they cared about.

[00:11:32] Speaker 03:
Commerce says what we care about is the independence with respect to export activities.

[00:11:37] Speaker 03:
Even though there was evidence of that independence,

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Instead of considering that evidence, commerce simply said, majority-owned, we're going to stop the analysis.

[00:11:47] Speaker 02:
And at the time of the fifth review... That sounds like commerce's practice at the time then was actually different than what you were saying, because that's what they said, that majority ownership was enough under factor three in this case.

[00:11:59] Speaker 02:
How can you say commerce's practice was different than what you just described their conclusion in this case was?

[00:12:08] Speaker 03:
Because 10 years ago, Your Honor, that wasn't back to commerce as practice.

[00:12:12] Speaker 03:
Commerce- Not in this case, apparently.

[00:12:14] Speaker 03:
Well, but we submit that is a failure to comply with substantial evidence because commerce- How is that a substantial evidence question?

[00:12:22] Speaker 02:
That's a legal question.

[00:12:23] Speaker 02:
So either its practice was correct as a matter of law, which we now know it was because we said so in Pirelli, or it wasn't.

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Pirelli has had an evidence question.

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It's, is the practice this or that, and is that legally correct?

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Then we look at the evidence.

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If you start with the first question, is majority control enough to show de facto control, and that's legally contract, then it's undisputed that you have majority control.

[00:12:53] Speaker 02:
It answers all the questions.

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Either you have to convince us that majority control standing alone is not enough to have you fail factor three,

[00:13:02] Speaker 02:
I mean, that's what you have to convince us, but we're bound.

[00:13:07] Speaker 02:
I know why you're trying to change this into a substantial evidence question, because you want to get around Pirelli.

[00:13:14] Speaker 02:
But what you're describing is not a substantial evidence question.

[00:13:18] Speaker 02:
It is, what was Congress's policy in this case?

[00:13:21] Speaker 02:
And its policy in this case was, majority control is sufficient to show de facto control under three.

[00:13:28] Speaker 02:
That's what they said in their decision in this case.

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That was what was on appeal the first time.

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And that's what their policy is now.

[00:13:37] Speaker 02:
That's not an evidence question.

[00:13:38] Speaker 03:
That's a legal question.

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So I'll do respect your honor.

[00:13:41] Speaker 03:
I think it is an evidence question because implicit in your question is you seem to be saying that majority control means control of absolutely everything.

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And our point is that

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Under the standard that commerce was applying at the time, it had to be majority control and influencing the export decisions.

[00:14:04] Speaker 03:
Is that what it said here in this case?

[00:14:06] Speaker 03:
That's what it said.

[00:14:07] Speaker 03:
No, your honor, it is what it said in this case because joint appendix at 0425 to 0426, that's the commerce final determination where basically specifically

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endorses the traditional view that the legal environment in China is permissive of independent actions about export activities.

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So they were still focusing on the export activities.

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And our point is there was substantial evidence on the record about the independence, even given the majority ownership.

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Even given majority ownership, there was independence with respect to export activities.

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That evidence was never considered.

[00:14:49] Speaker 03:
In fact, none of the evidence that we submitted about why CMA was independent was not beholden to the government with respect to what Commerce Ed was the legally relevant factors.

[00:15:01] Speaker 04:
There were minority controlled cases back then as well, right?

[00:15:05] Speaker 03:
Yes.

[00:15:05] Speaker 04:
And so that's the permissive environment.

[00:15:10] Speaker 03:
But that wasn't the distinction that we're trying, Your Honor, because remember, in the original investigation, even for us, with the majority ownership, they said that, OK, we find that the facts here were sufficient to establish the independence.

[00:15:25] Speaker 03:
And our basic point is that.

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Fundamentally, we had submitted a lot of evidence about the actual operational independence.

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Commerce refused to consider it.

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And we believe that even under Pirelli, Commerce had an obligation to consider the actual evidence we had submitted.

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It was not, at the time of the Fifth Review, a per se rule.

[00:15:49] Speaker 03:
We just looked at majority ownership and we stopped.

[00:15:51] Speaker 04:
That's great.

[00:15:51] Speaker 04:
Actually, I don't know what I'm saying.

[00:15:53] Speaker 04:
actual lack of control.

[00:15:55] Speaker 04:
What about potential control?

[00:16:00] Speaker 04:
I'm sorry?

[00:16:01] Speaker 04:
Potential control.

[00:16:03] Speaker 03:
Factual information that would have addressed either actual or potential control would have been fair game.

[00:16:09] Speaker 03:
Our point is that the determination has written didn't address any of that.

[00:16:13] Speaker 04:
So if there's potential control, why does commerce have to look at actual control over certain other factors?

[00:16:20] Speaker 03:
because there were substantial evidence on the record that there was, in fact, practically speaking, independence.

[00:16:28] Speaker 03:
So theoretical control.

[00:16:31] Speaker 04:
But if the decision can be made on three alone, and your actual control evidence that you want measured is on other factors, why does commerce have to consider that?

[00:16:42] Speaker 03:
Because the core question was,

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The evidence on the record, did it establish independence even in the face of the majority ownership?

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And that's why it's also related to factor three, because factor three doesn't establish a per se rule.

[00:17:01] Speaker 03:
Majority ownership, it's over, at least in the time of the fifth review.

[00:17:04] Speaker 03:
That was not the standard.

[00:17:06] Speaker 03:
I see that my time has run over, so unless there are any other media questions.

[00:17:09] Speaker 04:
We'll restore your rebuttal time.

[00:17:11] Speaker 03:
Thank you.

[00:17:20] Speaker 01:
May it please the court, the 65% ownership by a state-owned enterprise, that was enough.

[00:17:28] Speaker 01:
But there was substantial evidence on the record.

[00:17:30] Speaker 01:
also further supporting commerce's determination.

[00:17:33] Speaker 00:
Can you just clarify for me or remind me or something?

[00:17:41] Speaker 00:
Did commerce at the time of this decision say that majority ownership compelled a finding of non-independence?

[00:17:54] Speaker 01:
I don't believe that commerce did that.

[00:17:56] Speaker 00:
Has it said that since then?

[00:18:00] Speaker 01:
I believe that now it has reached that conclusion.

[00:18:03] Speaker 01:
But as a practical matter, it still looks at other evidence if somebody proffers it as an explanation for why they're not subject to government control.

[00:18:12] Speaker 00:
So in 2015, you said it did not say that.

[00:18:16] Speaker 00:
So it said here that the majority ownership was, in this case, sufficient to draw the conclusion of independence.

[00:18:28] Speaker 01:
I believe it did, but then it also went further than that, because it looked at specific evidence on the record.

[00:18:33] Speaker 01:
If you look at pages 30, 14 to 30, 18 of the administrative record, it talked about exactly the kind of evidence that... Is that a JA number or...?

[00:18:43] Speaker 01:
Yes, JA.

[00:18:44] Speaker 01:
Sorry.

[00:18:46] Speaker 01:
So it talked about, first of all, the ownership structure.

[00:18:50] Speaker 01:
It talked about how the majority owner was able to

[00:18:55] Speaker 01:
direct the composition of the board of directors, which in turn hired the general manager who maintains operational control over the company.

[00:19:06] Speaker 01:
So the board of directors would maintain operational control over the company.

[00:19:10] Speaker 01:
Then it looked at the

[00:19:12] Speaker 01:
minority shareholder protections that CMA contended were relevant and in fact verified the company that none of those protections were ever used during the relevant period.

[00:19:25] Speaker 04:
This is ten years ago what Commerce was doing?

[00:19:27] Speaker 01:
Yes.

[00:19:29] Speaker 04:
You're saying they didn't have a flat rule that said if you have a majority it's controlled.

[00:19:34] Speaker 01:
I don't believe they did, because they went much farther down into the record.

[00:19:37] Speaker 01:
And the final thing they looked at, at page 37 of the appendix.

[00:19:41] Speaker 04:
So what's your adversary complaining about?

[00:19:45] Speaker 01:
I think they're complaining that they did not get a separate rate.

[00:19:48] Speaker 04:
No, no, no.

[00:19:48] Speaker 04:
What are they complaining about?

[00:19:49] Speaker 04:
They have a process complaint here, right?

[00:19:52] Speaker 01:
Yes, they have a process complaint.

[00:19:53] Speaker 04:
The way he's framing it, I didn't see it in his brief, but in the way he's framing it now.

[00:19:59] Speaker 01:
That's correct.

[00:19:59] Speaker 04:
10 years ago, 10 years ago, he's in essence trying to say, I think, that they had a flat

[00:20:04] Speaker 04:
Well, even if they did, it doesn't matter.

[00:20:10] Speaker 01:
I don't know right now standing here.

[00:20:13] Speaker 01:
I don't believe they did.

[00:20:14] Speaker 04:
Because you don't actually know.

[00:20:16] Speaker 04:
The answer you gave earlier, you don't know whether that's true or not.

[00:20:19] Speaker 01:
The answer I gave earlier was I don't... The answer I gave earlier was... You told the presiding judge that there was no flat rule.

[00:20:28] Speaker 01:
And that's what I believe from the record here because commerce dove much more deeply into the record than just saying 65% therefore

[00:20:40] Speaker 01:
therefore, the company is state controlled.

[00:20:42] Speaker 01:
What Commerce did was looked at the other pieces of evidence.

[00:20:44] Speaker 01:
For example, the intertwined nature of the state-owned enterprise and DoubleCoin's management board.

[00:20:53] Speaker 04:
Well, didn't they actually find that CMA was free of government control on some of the factors?

[00:20:59] Speaker 01:
Commerce focused on the management factor, which was the third factor of the four.

[00:21:04] Speaker 04:
Even 10 years ago?

[00:21:05] Speaker 01:
Yes.

[00:21:06] Speaker 04:
They only looked at the third factor.

[00:21:09] Speaker 01:
Yes, they looked at the third factor and gave it controlling weight.

[00:21:17] Speaker 04:
And in connection with the third factor, did they look at the other evidence that you're saying they overlooked?

[00:21:24] Speaker 01:
I believe they looked at all of the evidence that was presented.

[00:21:26] Speaker 04:
Do you believe or mean how carefully have you read

[00:21:29] Speaker 01:
the 10-year-old report so you can... I have read it all very carefully, and I've read it all very carefully also in light of Pirelli and in light of the trial court's final decision, which was the one decision that was relevant to this case.

[00:21:45] Speaker 02:
It seems to me that their argument, at least in their briefs, was

[00:21:49] Speaker 02:
On factor three, it's not enough to just show government control in selecting the board of directors and the management, but that you actually, the commerce have to come forth and show that that control leads to control of export prices.

[00:22:06] Speaker 01:
And that's what we rejected in Forelli.

[00:22:09] Speaker 01:
Exactly.

[00:22:11] Speaker 01:
And that was their primary argument in their brief in this case, yes.

[00:22:20] Speaker 01:
And for that reason, the facts in this case, with the exception of majority ownership, are on all fours with Pirelli.

[00:22:30] Speaker 01:
I'd note that at the appendix pages that I cited, it talked about how the

[00:22:35] Speaker 01:
state-owned enterprises was able to appoint the board of directors and how it was the board of directors was able to appoint management and to maintain operational control over the company and also the intertwined nature between the state-owned enterprise and the board of directors and management of Double Point.

[00:22:54] Speaker 02:
Are you aware of any cases where commerce has ever found that factor three control wasn't shown or was shown

[00:23:05] Speaker 02:
But nonetheless, you gave them an independent, right?

[00:23:09] Speaker 02:
I'm not aware of any cases.

[00:23:15] Speaker 04:
Are you forfeiting your lead argument?

[00:23:21] Speaker 04:
Your brief started on a different point, didn't it?

[00:23:26] Speaker 04:
about the mandate rule?

[00:23:28] Speaker 01:
Oh, no.

[00:23:28] Speaker 01:
We're not forfeiting it.

[00:23:29] Speaker 01:
The first sentence of this court's opinion.

[00:23:32] Speaker 01:
Oh, it was like a dispositive argument.

[00:23:35] Speaker 01:
It is dispositive.

[00:23:36] Speaker 01:
And the first sentence of this court's opinion.

[00:23:37] Speaker 00:
And just to be clear, so is the other argument.

[00:23:40] Speaker 01:
Yes.

[00:23:41] Speaker 01:
So is the other argument.

[00:23:43] Speaker 01:
No.

[00:23:44] Speaker 01:
I turn straight to the merits.

[00:23:46] Speaker 01:
I believe the brief speaks for itself.

[00:23:48] Speaker 01:
But I'll just note that the very first sentence of this court's opinion in the first CMA said, it is undisputed that Doublecoin failed to demonstrate independence from the Chinese government.

[00:23:59] Speaker 02:
We don't have to reach that argument, though.

[00:24:01] Speaker 02:
It's not jurisdictional, right?

[00:24:02] Speaker 02:
So if we agree on the merits, we can just ignore your first argument?

[00:24:08] Speaker 01:
That's correct.

[00:24:08] Speaker 01:
But if the court has a question on the merits, then it does need to reach our first argument.

[00:24:14] Speaker 01:
For these reasons, we respectfully request the court.

[00:24:17] Speaker 00:
Thank you.

[00:24:26] Speaker 03:
I just have three points I would like to make in rebuttal.

[00:24:31] Speaker 03:
First, on the last issue about their opening argument, with all due respect, as we set forth in our brief and as Judge Stansu found, the issue of substantial evidence had not previously been litigated, that the court's prior decision did not address the substantial evidence, and so the issue that we brought

[00:24:50] Speaker 03:
before the court of substantial evidence is still very much alive.

[00:24:53] Speaker 03:
Second point I would like to make is that boards don't set prices.

[00:25:00] Speaker 03:
Boards control management, but boards do not set prices.

[00:25:05] Speaker 03:
And that is precisely why, historically, and at the time of the fifth review, Commerce put so much emphasis on what is the evidence we have about what is determining the prices.

[00:25:17] Speaker 03:
My third point is that I respectfully disagree with my colleague's characterization that commerce dug deeply into the record here.

[00:25:26] Speaker 03:
They did not.

[00:25:27] Speaker 03:
And the essence of our argument of why they did not dig deeply into the record is found at pages 60 to 62 of our brief.

[00:25:35] Speaker 02:
Can I take one more chance to see if I can understand what you're saying?

[00:25:38] Speaker 02:
Because frankly, I don't.

[00:25:39] Speaker 02:
Is your argument that at the time, to show government control under factor three, they had to show specific control of export prices?

[00:25:52] Speaker 02:
And even though that is now overtaken by Pirelli, at the time, that was either their policy or the law.

[00:25:59] Speaker 02:
And that record doesn't show that.

[00:26:01] Speaker 02:
Is that what your argument is?

[00:26:03] Speaker 03:
More precisely, Your Honor, our argument is that even under Pirelli, there is a question

[00:26:08] Speaker 03:
Is there substantial evidence under factor three?

[00:26:12] Speaker 02:
OK, you've lost me again.

[00:26:14] Speaker 02:
I was giving you the best shot.

[00:26:15] Speaker 02:
But your substantial evidence argument makes no sense to me.

[00:26:18] Speaker 02:
This is either a legal policy question, not a substantial evidence question.

[00:26:24] Speaker 02:
It is either the Commerce Department has to look at actual control over export prices for factor three, or it does not.

[00:26:34] Speaker 02:
Once you make that determination, then you look at what the evidence is.

[00:26:38] Speaker 03:
But what Pirelli decided, Your Honor, was is factor three by itself sufficient as a legal matter, because that was the argument being presented, and what the court decided was it wasn't.

[00:26:50] Speaker 00:
Just to be clear, what Pirelli said was that commerce may choose to treat it as sufficient.

[00:26:56] Speaker 00:
And I guess I thought I was hearing you before making a kind of argument that said,

[00:27:02] Speaker 00:
It had not so chosen, so chosen in 2015.

[00:27:06] Speaker 00:
So the fact that, and it's not compelled to by the statute, we're now dealing with a

[00:27:14] Speaker 00:
policy choice by commerce.

[00:27:17] Speaker 00:
And there has to be more consistency than there was at the time, even though it could have chosen something different.

[00:27:26] Speaker 03:
Maybe I misunderstood.

[00:27:27] Speaker 03:
No, no.

[00:27:28] Speaker 03:
I think your understanding is correct, Your Honor, because it fundamentally comes down to the question, control of what?

[00:27:34] Speaker 03:
right and in our view it is not sufficient to say just control in the general unspecified amorphous way particularly not in a case like this where there was specific evidence that commerce did not address and in particular if I were to

[00:27:51] Speaker 03:
We summarize all the evidence at pages 60 to 60 to our opening brief.

[00:27:55] Speaker 03:
But if I were to point the court to the single fact that we think is most compelling for us, it is the fact that in this case, in this specific case, there was an agreement between CMA and its immediate parent, DoubleCoin, guaranteeing CMA operational independence for setting prices.

[00:28:14] Speaker 03:
And yes, majority ownership at a higher level within the organization may be relevant.

[00:28:19] Speaker 03:
Our point is simply that commerce can't simply choose not to address at all any of that specific evidence in favor of this overarching majority control is enough.

[00:28:31] Speaker 03:
Thank you, Your Honor.

[00:28:32] Speaker 00:
Thanks to both counsel and the cases submitted.

[00:28:36] Speaker 00:
That concludes our business for today.