[00:00:02] Speaker 00:
Before we begin our regular proceedings today, I'm going to do something else, and that's ask a turnover to Judge Schall to recognize me for a motion.

[00:00:12] Speaker 00:
You are recognized, Chief.

[00:00:13] Speaker 00:
Thank you.

[00:00:18] Speaker 00:
Could you stand?

[00:00:19] Speaker 00:
Make a stand for a little bit.

[00:00:21] Speaker 00:
I move the admission of Jessica Huda

[00:00:24] Speaker 00:
who is a member of the Bar and is a good standing in the highest courts of California.

[00:00:28] Speaker 00:
I have knowledge of her credentials, and I'm satisfied that she possesses the necessary qualifications.

[00:00:34] Speaker 00:
It's kind of caught me by surprise, because I forgot that we were swearing Jessica in.

[00:00:38] Speaker 00:
But what catches me as a worse surprise is that she's actually leaving.

[00:00:42] Speaker 00:
I usually say that these are bittersweet moments for me, but this is just that.

[00:00:53] Speaker 00:
Jessica has just been a tremendous asset to our chambers and to the court in its entirety.

[00:00:59] Speaker 00:
And she's just been a delight for the chambers and the court in its entirety to come here.

[00:01:05] Speaker 00:
She made a greater sacrifice than most because she schlepped her whole family over here too.

[00:01:10] Speaker 00:
And we want to recognize and thank them for that contribution.

[00:01:14] Speaker 00:
But her girls are in DC public schools and her husband has moved here.

[00:01:21] Speaker 00:
The bad news is they're moving back to California.

[00:01:24] Speaker 00:
And that's really sad for me.

[00:01:27] Speaker 00:
But I just want to express my gratitude to Jessica and her family.

[00:01:32] Speaker 00:
And it's been a wonderful ride.

[00:01:34] Speaker 00:
And I hope you will cherish it, because I will.

[00:01:39] Speaker 03:
The panel has reviewed all of the supporting papers and affidavits.

[00:01:45] Speaker 03:
And we're pleased to grant the motion.

[00:01:50] Speaker 05:
Thank you.

[00:01:51] Speaker 05:
You solemnly swear that you will import yourself as an attorney and counsel of this court, up rightly and according to law, and that you will support the Constitution of the United States of America.

[00:02:04] Speaker 00:
Congratulations.

[00:02:08] Speaker 00:
The first case for argument this morning is 17-1913, CSWIN Vietnam versus the United States.

[00:02:16] Speaker 00:
Ms.

[00:02:17] Speaker 00:
Thorson, whenever you're ready.

[00:02:21] Speaker 06:
Thank you, Your Honor.

[00:02:23] Speaker 06:
May it please the Court, I'm Maureen Thorson of Wiley-Ryne, here today on behalf of the Wynn Tower Trade Coalition.

[00:02:29] Speaker 06:
This is the second time that this action has been before the Court, and there are only two narrow issues remaining.

[00:02:36] Speaker 06:
First, the Coalition urges this Court to consider further remands to the U.S.

[00:02:40] Speaker 06:
Department of Commerce regarding the record evidence used to determine the weight of internal components in C.S.

[00:02:46] Speaker 06:
Wynn's towers.

[00:02:48] Speaker 06:
The coalition recognizes that an earlier panel of this court rejected Commerce's explanation for relying on packing list weights and remanded with directions that the margin be recalculated using CS Wynn's reported FOP weights.

[00:03:02] Speaker 06:
But this court has also questioned whether directed remands are permissible under the statute authorizing review of Commerce's determinations and has further recognized that directed remands are disfavored generally in federal administrative law because

[00:03:16] Speaker 06:
There's nearly always the possibility that the same result will be reached, but on different grounds.

[00:03:21] Speaker 04:
Wasn't the last round the time for you to make this argument?

[00:03:26] Speaker 06:
The last round before this court?

[00:03:29] Speaker 04:
Like, I mean, on rehearing, saying... Oh, on rehearing?

[00:03:32] Speaker 04:
Yes.

[00:03:33] Speaker 04:
Well, actually, I mean, either place, but particularly on rehearing, saying the relief went too far, you shouldn't have ordered

[00:03:42] Speaker 04:
the adoption of one of the two methods you should have given the agency a chance to decide whether it had a better reason than it had yet expressed.

[00:03:51] Speaker 06:
The coalition believes that that would have been one option for us, but that the appellees, for example, have not cited any cases, anything that would say that's the only way that this issue can come back before this court.

[00:04:05] Speaker 06:
From a practical perspective, the prior panel's decision remanded two aspects of the case, one with a very open-ended instruction to the agency to reconsider.

[00:04:17] Speaker 06:
It was not clear what the effect on the margin was really going to be at the time of remand.

[00:04:23] Speaker 06:
And my client, while I was not involved in the earlier round of appeals, I suspect my client's interest in further litigation would have been

[00:04:31] Speaker 06:
nil if on remand the margin remained sufficiently high to keep CS Wind within the confines of the order.

[00:04:40] Speaker 06:
At the time of the remand order, that just was not clear how that was going to actually play out for the margin calculations themselves.

[00:04:49] Speaker 00:
I'm trying to just think in comparable situations where you say, you know, we didn't like the opinion, but we thought we had a 50-50 chance of winning.

[00:04:58] Speaker 00:
Now that we realize we've lost under that, we get to re-question it again, whereas you had the opportunity to question it on re-hearing.

[00:05:07] Speaker 06:
Well, again, it was as a practical perspective, given that, you know, you don't want courts issuing advisory opinions if it's

[00:05:15] Speaker 06:
not an issue that's going to be of importance to the client and there's no way to really know that until we get that margin recalculation not just on the issue where there was directed remand but the very open-ended one involving how the financial statements are going to be used just was not clear to us at that point that we would get quite the

[00:05:33] Speaker 06:
dramatic effect on remand that we did, where a 17% margin went to zero, too low to keep CS Wind, the only mandatory respondent in the investigation within the scope of this order.

[00:05:46] Speaker 04:
Because of the change of the methodology on the overhead.

[00:05:50] Speaker 06:
We both think working together obviously had an effect, and as you may know, anti-dumping calculations being as complex as they are can be extremely difficult to predict in advance what the effects will be, and particularly where you have at least one issue where there's quite an open-ended remand, and commerce had any number of things it could do on remand with respect to those financial statements.

[00:06:17] Speaker 06:
not a case in which the agency was given multiple bites at the apple and failed to return a supportable result.

[00:06:23] Speaker 06:
Rather, the Court of International Trade affirmed Commerce's reliance on packing list data in the first instance before this court remanded with instructions for the agency to recalculate the margins based on alternative data.

[00:06:35] Speaker 06:
The weight issue was also manifest importance to the domestic industry because, as it turned out, that 17% margin went to zero on remand.

[00:06:44] Speaker 04:
I think I understand this, but tell me, as a result of it going to zero here, CSWIN Vietnam is no longer subject to the anti-dumping duty order.

[00:06:55] Speaker 04:
And if you thought that there was still a problem, what course would you have to pursue to try to impose anti-dumping duties on them in the future?

[00:07:10] Speaker 04:
Initiate a new proceeding?

[00:07:11] Speaker 06:
You'd have to initiate a whole new case.

[00:07:14] Speaker 06:
Vietnam and specifically on CS Wind.

[00:07:20] Speaker 06:
As the prior panel stated when it was evaluating Commerce's financial statement calculations, the agency has unique expertise in the administration of the anti-dumping duty laws.

[00:07:30] Speaker 06:
The tariff act also charges the agency with weighing the record evidence

[00:07:34] Speaker 06:
Here, given that the agency was never accorded a second chance in this action to consider its determination on the longstanding federal administrative precedent, judicial precedent, disfavoring directed remands, we believe that both the law and the equities counsel consideration of further remand here.

[00:07:51] Speaker 06:
I'd also like to briefly address the law of the case doctrine.

[00:07:55] Speaker 06:
The lower court opinion and appellee briefs, and thus our reply brief, focused

[00:08:00] Speaker 06:
more specifically on the applicability of the mandate rule to the agency in the lower court and stare decisis.

[00:08:06] Speaker 06:
These are concepts that are conceptually related to law of the case, but not precisely the same.

[00:08:11] Speaker 06:
The Supreme Court has explained in Arizona versus California that the law of the case doctrine is amorphous.

[00:08:17] Speaker 06:
It's a judicially created doctrine and most commonly defined deposit that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.

[00:08:29] Speaker 06:
The Supreme Court has also explained that law of the case is not a hard stop on judicial power.

[00:08:34] Speaker 06:
It exists as a guide to judicial discretion.

[00:08:37] Speaker 04:
And to the extent that the present panel... Isn't there a fair bit of law that says the mandate rule as part of the law of the case is pretty darn strict?

[00:08:48] Speaker 06:
Yes, but the mandate rule really applies to lower courts and agencies.

[00:08:52] Speaker 06:
I did some research on this in preparing for our argument.

[00:08:55] Speaker 06:
I could not find a case that said the mandate rule binds the court that issued the mandate.

[00:09:01] Speaker 06:
The law of the case doctrine goes more to how the court that issued the mandate should view issues if they come back up on appeal.

[00:09:09] Speaker 06:
And again, the Supreme Court says this is sort of a discretion

[00:09:14] Speaker 06:
of the court, do we want to revisit a prior rule of law that a prior panel has stated in a previous stage of the case?

[00:09:23] Speaker 06:
Here, though, it's discretionary.

[00:09:25] Speaker 06:
There's no hard stop.

[00:09:26] Speaker 06:
It's not jurisdictional.

[00:09:27] Speaker 06:
There's no absolute bar on the tribunal's power that's established by the law of the case doctrine.

[00:09:35] Speaker 06:
And so it's a guide to judicial discretion.

[00:09:38] Speaker 06:
And to the extent that the present panel believes one of the cases relevant here, we're asking the court to exercise its discretion in favor of remand for the reasons I previously mentioned, and with particular emphasis on the fact that the prior panel's determination did not circle solely on the law.

[00:09:55] Speaker 06:
It was not one of statutory interpretation or what the regulations mean, but of which record facts were the most persuasive and reliable.

[00:10:05] Speaker 06:
I'd now like to turn to the second issue in the case, which is Commerce's determination not to seek clarifying information from Ganges, the company that issued the surrogate financial statement.

[00:10:15] Speaker 06:
The financial statement here is not ideally clear with respect to the degree to which various line items include or contain overhead expenses.

[00:10:23] Speaker 06:
The agency repeatedly attempted to separate out overhead expenses only for the lower court and prior panel to profess confusion as to the methodologies that were used and the agency's rationales for adopting them.

[00:10:35] Speaker 03:
Mr. Thorson, let me ask you a question.

[00:10:36] Speaker 03:
What typically, if you know, is the process, what process does commerce follow when it seeks or wants to use financial information from a third-party surrogate like Ganges here?

[00:10:51] Speaker 03:
Does it go to public documents, or is there ever any contact as a matter of general course with the third-party surrogate?

[00:10:59] Speaker 06:
The agency's general practice, as I understand it, is not to seek information directly from third parties.

[00:11:04] Speaker 06:
Generally, it relies on the parties to present surrogate financial statements to the agency.

[00:11:10] Speaker 06:
It does not go out and seek such data on its own.

[00:11:12] Speaker 06:
Now, that being said, I have seen commerce in certain cases go out and do its own research on, for example, what a word means in a surrogate financial statement or whether there's any evidence to show that a particular company is really making

[00:11:27] Speaker 06:
products similar or identical to the product at issue.

[00:11:30] Speaker 06:
Commerce has great discretion, and even though it doesn't have a general practice of seeking third-party data or issuing questionnaires to third parties, it doesn't have a hard stop or anything that precludes it from going out, doing its own research, supplementing their own... So you're saying initially, though in the initial case here, the information, namely the Ganges financial data, would have come from the parties before Commerce.

[00:11:54] Speaker 06:
All the parties would have been given an opportunity to put surrogate data on the record.

[00:11:58] Speaker 06:
The parties would have gone out and done research on what companies might exist in potential surrogate countries that make merchandise identical or like the subject merchandise that are publicly available that don't seem to have subsidies in the surrogate financial statements.

[00:12:14] Speaker 06:
At least the statements don't obviously show the receipt of counter-available subsidies and would put those on the record for the agency to then consider a choice among all the financial statements on the record.

[00:12:25] Speaker 04:
And this one was in some way a public financial statement issue, I don't know, like the Indian SEC or something?

[00:12:33] Speaker 06:
Indian companies often have publicly available financial statements, and that was one of the reasons that for many years commerce primarily relied on India as a surrogate for China.

[00:12:43] Speaker 06:
In non-market economy cases, it was just very easy to get financial statements out of India.

[00:12:49] Speaker 06:
Here we have an Indian financial statement that, for better or worse, doesn't have ideal clarity with respect to this line item and how you're going to separate out the overhead expenses in it.

[00:13:00] Speaker 06:
The prior panel, again, remanded to the agency to make another attempt at separating out these expenses and specifically asked the agency to explain whether it viewed itself as somehow precluded from seeking data from Ganges.

[00:13:13] Speaker 04:
Right, and as I understand it, the commerce came back and said, no, we're not precluded.

[00:13:18] Speaker 04:
We can, but we have generally good reasons, and we're going to rely on them here for not asking because the likelihood of a, it would be,

[00:13:30] Speaker 04:
We can't force them to give us an answer that we can confirm to be reliable without far more work than, without burdensome work, and it's just not worth it.

[00:13:42] Speaker 04:
Why is that not a reasonable way to proceed?

[00:13:45] Speaker 06:
That might be a reasonable explanation for your general practice of not going out and doing this, but this is a case with extremely unique facts.

[00:13:52] Speaker 06:
Commerce has had multiple bites at the apple.

[00:13:54] Speaker 06:
This is obviously a confusing issue.

[00:13:56] Speaker 06:
They've been working sort of blind

[00:13:59] Speaker 06:
with a lot of guesswork as to how to separate out these various parts of overhead from these line items.

[00:14:06] Speaker 06:
The prior panel itself said, why not ask?

[00:14:09] Speaker 06:
Why not just go try and ask, at least?

[00:14:12] Speaker 06:
And while Commerce has explained that it's not precluded from seeking data but chooses not to do so, we don't believe that the rationales they're giving are very satisfactory, given the unique facts of this case.

[00:14:24] Speaker 06:
We're not requesting that Commerce institute a general practice of seeking data from third parties.

[00:14:30] Speaker 06:
We've just got extremely unique facts here where everyone has scratched their heads and puzzled over this financial statement multiple times.

[00:14:38] Speaker 06:
And information from Ganges, if it were obtained, would be another data point that could clarify all of this confusion and... What's the standard that we use to review this determination?

[00:14:50] Speaker 06:
That's a good question.

[00:14:51] Speaker 06:
I would say it's very much similar to the normal, have you articulated a satisfactory explanation for your conclusion given the facts?

[00:14:59] Speaker 06:
If you haven't,

[00:15:00] Speaker 06:
Go back and try it again.

[00:15:01] Speaker 06:
You can either change your mind and ask them for information, or you can come back to us and give us an explanation that holds water.

[00:15:09] Speaker 06:
But you have to have an explanation that makes sense, given these unique facts, that isn't just an explanation of why you don't have a general practice of requesting such data.

[00:15:19] Speaker 06:
Why does it make sense here?

[00:15:21] Speaker 06:
What would the specific burdens be here?

[00:15:25] Speaker 06:
for issuing a very short questionnaire.

[00:15:28] Speaker 06:
And if you didn't get the information, well, then at least you've tried.

[00:15:32] Speaker 06:
And you can go forth with the calculations you've got.

[00:15:36] Speaker 06:
And if you do get an answer, it's another, yeah.

[00:15:37] Speaker 04:
Can I ask you one quick question?

[00:15:38] Speaker 04:
Did you suggest to Commerce a very targeted, written out, specific inquiry or number of inquiries that it might make to Ganges?

[00:15:50] Speaker 06:
I don't believe that we presented them with the specific, like, here's your letter, please go send it.

[00:15:56] Speaker 06:
But the issue here is very rare.

[00:15:59] Speaker 04:
Because it's not self-evident to me what the precise question is.

[00:16:03] Speaker 04:
How do you do tower setup?

[00:16:07] Speaker 06:
Yes, it might be something like that.

[00:16:09] Speaker 06:
It might be just, we're having trouble understanding line items two, three, and five.

[00:16:14] Speaker 06:
Please tell us to what extent tower setup costs include book X and Y. This is not a very long

[00:16:20] Speaker 06:
It's not a huge burdensome thing to put together.

[00:16:24] Speaker 06:
And as the lower court said, the burden of putting it together and sending it out is likely quite low.

[00:16:28] Speaker 06:
And whether you get an answer, if you don't get an answer, OK, you don't get an answer.

[00:16:33] Speaker 06:
If you do get one, then you have another data point to consider and possibly a very persuasive one that could cut out some of this guesswork and lead to more accurate results overall.

[00:16:41] Speaker 00:
Do you think that one of the factors in commerce's decision not to seek an answer is that once they cross a certain line,

[00:16:48] Speaker 00:
and kind of acknowledge or agree that they need this information that puts more pressure on them if they don't get an answer to then have to undertake further development on their own?

[00:16:57] Speaker 06:
No, not necessarily.

[00:16:59] Speaker 06:
I think if they asked the question and didn't get an answer, then they would say, we asked, we didn't get an answer.

[00:17:04] Speaker 06:
Here's our record.

[00:17:05] Speaker 00:
OK.

[00:17:06] Speaker 00:
We've almost exhausted your rebuttal time.

[00:17:08] Speaker 00:
We'll restore a couple of minutes, but let's hear from the other side.

[00:17:10] Speaker 06:
Thank you, Your Honor.

[00:17:37] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:17:39] Speaker 00:
We're running your clock just so you'll know at the time that you've asked for.

[00:17:46] Speaker 02:
Your Honors, this court should affirm the decision of the trial court because commerce follow this court's instructions.

[00:17:54] Speaker 02:
Specifically, with respect to the weight discrepancy issue, this court made very specific instructions directing commerce to use

[00:18:06] Speaker 02:
the factor of production weights, and start contrast to the open-ended remand that it ordered with respect to the financial statement issue.

[00:18:15] Speaker 02:
We would respectfully disagree with counsel for repellence that there is no legal authority on this question.

[00:18:23] Speaker 02:
And in particular, this court's decision in banks, which discussed the mandated rule as part of the law of the case doctrine, is applicable.

[00:18:33] Speaker 02:
And in particular,

[00:18:35] Speaker 02:
I note that banks certainly did not involve purely legal questions.

[00:18:40] Speaker 02:
It was a factual matter.

[00:18:41] Speaker 02:
It was a case about the jurisdictional facts relating to a statute of limitations issue.

[00:18:47] Speaker 02:
And what had originally happened is that this court had made a ruling on the statute of limitations grounds.

[00:18:52] Speaker 02:
It went back to the trial court.

[00:18:54] Speaker 02:
The trial court induced additional facts at trial that it believed moved the goalposts in terms of the statute of limitations issue.

[00:19:02] Speaker 02:
The case came back to the court, and the court said, no,

[00:19:05] Speaker 02:
This has been determined by a prior panel of this case.

[00:19:09] Speaker 02:
If anything, the law of the case doctrine, when you have a prior panel of this court in the same litigation making a decision, is further preclusive.

[00:19:19] Speaker 02:
I'm sorry, further preclusive than, for example, stare decisis.

[00:19:23] Speaker 02:
It's the same case.

[00:19:26] Speaker 02:
The further legal authority that's applicable here are this court's own rules.

[00:19:30] Speaker 02:
Rule 40, which is the rule that governs rehearing,

[00:19:34] Speaker 02:
which gives this court an opportunity to look at errors of factor law as the appellants have alleged.

[00:19:42] Speaker 02:
And of course, rule 35, which is the en banc review rule, which allows a party to allege that there is a conflict with other decisions.

[00:19:51] Speaker 02:
So if that's the issue, appellants should have raised it in that context, having failed to do so,

[00:20:01] Speaker 02:
The mandate rule and the law of the case doctrine through decisions like banks kick in, and there isn't a further opportunity, at least before this court, for appellants to challenge the court's prior decision.

[00:20:14] Speaker 02:
The decision was clear.

[00:20:15] Speaker 02:
Commerce followed it, and it should be affirmed on that basis.

[00:20:22] Speaker 02:
Regarding the second issue, with respect to the Ganges financial statement, Commerce also followed the court's direction

[00:20:30] Speaker 02:
in that court instructed commerce to provide an explanation about whether it had authority to seek further information.

[00:20:38] Speaker 02:
It did so.

[00:20:39] Speaker 02:
It confirmed that it does, in theory, have authority to seek information from anyone.

[00:20:46] Speaker 02:
It then further provided the explanation as to its practice and why it applied the practice here.

[00:20:53] Speaker 02:
To answer a question that your honors raised during Helen's arguments

[00:20:58] Speaker 02:
The process here is very much that commerce has no contact with these third party surrogate value companies.

[00:21:08] Speaker 02:
The parties to the proceeding, that is the Wind Tower Trade Coalition and CS Wind, provide financial statements as part of the process of developing the surrogate value information that commerce uses to value the price of one of these wind towers in the whole market.

[00:21:28] Speaker 02:
I would direct your honors to the record here in this case, particularly comments two and three of Commerce's issues and decision memorandum.

[00:21:39] Speaker 02:
Comment three is probably the most applicable.

[00:21:42] Speaker 02:
It's page 5129 of the record.

[00:21:44] Speaker 02:
Thank you.

[00:21:45] Speaker 02:
The reason that's interesting is because this is the stage at which the parties have proposed the Gainesville financial statement.

[00:21:53] Speaker 02:
And they're arguing over how these job work expenses should be treated.

[00:21:58] Speaker 02:
No one in that process asked Commerce to start reaching out to Ganges as a third party company who has no real involvement in the proceeding.

[00:22:09] Speaker 02:
Its only involvement in the proceeding is that it happens to be a company in India that has publicly available financial statements and one of the parties reached out and grabbed those statements and provided it to Commerce as part of the record.

[00:22:20] Speaker 04:
Did either of the parties have an opportunity on remand to

[00:22:27] Speaker 04:
to go out and talk to Ganges themselves and submit information.

[00:22:34] Speaker 04:
I guess one question is, did they have the opportunity?

[00:22:38] Speaker 04:
Second, did they do anything like that or what?

[00:22:43] Speaker 02:
I think the answer is yes, but it's more than a yes or no question.

[00:22:49] Speaker 04:
Yeah, there's several parts.

[00:22:50] Speaker 02:
Several parts.

[00:22:51] Speaker 02:
One thing I would note, which is slightly different, but I think very much related to Your Honor's question, is during the first two remands prior to this court raising the issue of suesponte in the previous appeal, no party has suggested to Commerce that Commerce go out and contact Ganges.

[00:23:07] Speaker 02:
And they certainly had the opportunity during the comment process on the remand results to say, hey, this is looking complicated.

[00:23:13] Speaker 02:
Maybe you should contact Ganges.

[00:23:15] Speaker 02:
No one, particularly not WTTC, the appellant now, asked commerce to do that during the first two remats.

[00:23:22] Speaker 02:
So that was certainly an opportunity to do so.

[00:23:25] Speaker 02:
The more complicated answer to your question is yes, they certainly could have advocated for commerce if they had wanted.

[00:23:33] Speaker 02:
The way this normally works in trade proceedings is that a party will, as maybe sometimes happens to this court when someone wants an extra filing or something like that, a party will come to the

[00:23:43] Speaker 02:
agency with information that it has obtained and say, we think you ought to reopen the record to include this information.

[00:23:52] Speaker 02:
So commerce did not make a formal decision to reopen the record.

[00:23:57] Speaker 02:
It didn't say, we're reopening the record and soliciting further information.

[00:24:00] Speaker 02:
But nor did a party, as they frequently do, come and say, we've gone and gotten information you should have.

[00:24:07] Speaker 02:
As a general matter, I think that's a rarity.

[00:24:12] Speaker 02:
It's very, very much the rarity that in this type of context where you have commerce's by regulation relying on publicly available information.

[00:24:23] Speaker 02:
And I'll provide the regulation that may be something that was kind of lost in the briefing.

[00:24:29] Speaker 02:
19 CFR 351-408C, that's commerce's regulation on surrogate values.

[00:24:35] Speaker 02:
And it specifically states a regulatory preference for relying on publicly information.

[00:24:41] Speaker 02:
not private information being solicited from a party.

[00:24:45] Speaker 02:
So I'm not familiar, and I would assert that it would be extremely rare for commerce to go out in this type of financial statement context and try to contact a third party company to get more information.

[00:24:59] Speaker 02:
The times commerce has done anything like that have been different.

[00:25:09] Speaker 02:
But on top of that,

[00:25:13] Speaker 02:
You know, in other instances, for example, I'm aware that in the next proceeding of this review, parties in attempting to

[00:25:26] Speaker 02:
to, I'm sorry, the next review of this proceeding.

[00:25:28] Speaker 04:
Yeah, the administration review.

[00:25:30] Speaker 02:
Exactly.

[00:25:31] Speaker 02:
Parties have gone out and gotten further surrogate value information from the sources that they supplied it and put it on the record and told commerce, you know, this organization that we've gotten metal data from has verified it.

[00:25:43] Speaker 04:
How many administrative proceedings have there been since?

[00:25:47] Speaker 04:
Is it just one or two?

[00:25:49] Speaker 04:
And what's the role of CS Wind in there?

[00:25:52] Speaker 04:
If we affirm here, do they get to say, see you later?

[00:25:56] Speaker 02:
CS1 has been provisionally excluded from ongoing proceedings pending the results.

[00:26:02] Speaker 02:
One administrator of review was completed.

[00:26:04] Speaker 02:
That case was in litigation at the time this court decided the first or shortly thereafter.

[00:26:12] Speaker 02:
So it stayed.

[00:26:13] Speaker 02:
pending the results of the decision here.

[00:26:16] Speaker 04:
State of commerce or CIT?

[00:26:17] Speaker 02:
State of CIT.

[00:26:20] Speaker 02:
It's a slightly complicated story.

[00:26:21] Speaker 02:
There were two reviews.

[00:26:22] Speaker 02:
The second and third review were rescinded because there were no shipments.

[00:26:26] Speaker 02:
The fourth review was recently completed.

[00:26:29] Speaker 02:
CS Wind was provisionally excluded from that review.

[00:26:35] Speaker 02:
And I think the time to appeal has expired.

[00:26:37] Speaker 02:
They are also provisionally excluded from the fifth review, which has just started.

[00:26:42] Speaker 02:
So the way it works is that they're provisionally excluded in the lesson until something different happens.

[00:26:47] Speaker 02:
And if this is affirmed, they will be permanently excluded.

[00:26:53] Speaker 02:
One other issue to note is that

[00:26:55] Speaker 02:
This court's precedent is that under cases like QVD Foods, which we cited in our brief, it's a party's responsibility to create.

[00:27:05] Speaker 02:
The parties before Congress have the burden to create a record before the agency.

[00:27:13] Speaker 02:
So whatever the agency might do in terms of striking out on its own, it's really ultimately up to the parties.

[00:27:20] Speaker 02:
It's not the agency's responsibility.

[00:27:24] Speaker 02:
Further here, I think, made clear that it's not just a matter of potentially not getting a response at all, but as Your Honor articulated its reasoning earlier, it's about getting a useful response and the likelihood of that, the possible turning, essentially, these surrogate value

[00:27:43] Speaker 02:
calculations that it's required to do in every non-market economy case into effectively in a mini investigation into the circuit value company and what might be behind its public financial statements.

[00:27:55] Speaker 02:
And for that reason, as the trial court agreed with Commerce, it's

[00:28:00] Speaker 02:
It's a matter of the potential burden and the fruitfulness of engaging in these type of inquiries, not justifying the cost of attempting to do so.

[00:28:10] Speaker 02:
It's an abuse of a discretion standard in this case.

[00:28:13] Speaker 02:
There's no governing rule.

[00:28:15] Speaker 02:
Hence, it's a matter of commerce's discretion.

[00:28:18] Speaker 02:
And these types of record inquiries, the court has typically treated as matters of agency discretion.

[00:28:23] Speaker 02:
And therefore, the standard review is abuse of discretion.

[00:28:25] Speaker 02:
Here, commerce did not abuse its discretion and followed the court's instructions.

[00:28:29] Speaker 02:
And therefore, the trial court's judgment should be affirmed.

[00:28:33] Speaker 00:
Thank you.

[00:28:34] Speaker 02:
Thank you.

[00:28:44] Speaker 01:
Good morning.

[00:28:45] Speaker 01:
I'm Ned Marshak on behalf of CS WEND.

[00:28:47] Speaker 01:
I'd like to start answering Judge Taranto's question on the opportunity of responding to petitioners on remand to go to Ganges.

[00:28:57] Speaker 01:
We had that opportunity to ask Commerce to go to Ganges throughout this proceeding before the Department of Commerce originally.

[00:29:04] Speaker 01:
Nobody asked.

[00:29:06] Speaker 01:
Nobody asked on the remand.

[00:29:08] Speaker 01:
When the court brought this issue up itself in its decision,

[00:29:12] Speaker 01:
we had a draft redetermination by the Department of Commerce.

[00:29:16] Speaker 01:
And that draft redetermination, we had the opportunity and petitioners had the opportunity to ask the Department of Commerce, why don't you go and ask Ganges for these particular reasons that are unique to this particular case?

[00:29:31] Speaker 04:
As I understood Mr. Curlin's answer,

[00:29:36] Speaker 04:
You also had the opportunity to say, please reopen the record.

[00:29:41] Speaker 04:
We talked to Ganges.

[00:29:43] Speaker 04:
Here's a sworn declaration saying, we do all of our towers set up by outsourcing contracting or something.

[00:29:53] Speaker 01:
On what happens on the remand, the Department of Commerce issued a draft redetermination.

[00:29:59] Speaker 01:
And in the draft redetermination, what Congress said this time was they recalculated the financial ratios in their draft redetermination in a way, for the first time, that was favorable to us.

[00:30:10] Speaker 01:
And they said they're not going to go out and get more information from Ganges.

[00:30:14] Speaker 01:
for reasons which we think are very important and correct reasons that it would be unsuited for the administrative process to open that up.

[00:30:21] Speaker 01:
So the draft determination comes out that when the parties comment, the parties have the opportunity to comment.

[00:30:27] Speaker 01:
And in those comments, the parties could say, there's something wrong with the calculation methodology and or in this particular case.

[00:30:38] Speaker 01:
You should have asked Angie's for these reasons and or

[00:30:41] Speaker 01:
We asked Ganges, and here's additional information.

[00:30:44] Speaker 01:
So the opportunities there are in the draft remand determination.

[00:30:47] Speaker 01:
In the draft remand determination, in this case, we filed comments saying, your draft remand is better, substantively, than your decision before.

[00:30:57] Speaker 01:
But we wanted to tweak it, because we thought there were mistakes, and we thought it could be even more precise.

[00:31:02] Speaker 01:
Petitioner, however, did not do that.

[00:31:05] Speaker 01:
Petitioner, all they did was say,

[00:31:08] Speaker 01:
Commerce, you made a mistake, because generally, you should have asked Angie something.

[00:31:13] Speaker 01:
But they didn't say that generally had any impact on this particular case.

[00:31:19] Speaker 01:
So at that point, petitioners had the opportunity to say that the commerce's re-determination was not supported by substantial evidence.

[00:31:26] Speaker 01:
They didn't do that.

[00:31:27] Speaker 01:
And we believe that once they didn't do that, the case is over.

[00:31:31] Speaker 01:
But what they also didn't do is they didn't link

[00:31:35] Speaker 01:
the reason to go to Ganges to this case.

[00:31:39] Speaker 01:
They just kept it general.

[00:31:41] Speaker 01:
So they can't say that there's a problem with this particular case because they lost that opportunity.

[00:31:47] Speaker 01:
So we have to look down generally should commerce go look behind financial statements.

[00:31:55] Speaker 01:
They didn't do the requisite link.

[00:31:57] Speaker 01:
They can't come in here now and say, you should have done it because this case was difficult.

[00:32:01] Speaker 01:
They had the opportunity to say that, and they blew it.

[00:32:05] Speaker 01:
But generally, when you look at commerce's general policies, why they don't go to look behind financial statements, we believe that commerce did a very good job of articulating that policy in your decision, and you see IT affirmed, and the policy makes a lot of sense.

[00:32:20] Speaker 01:
Because when commerce has one of these cases, they are very, very complicated.

[00:32:25] Speaker 01:
To look behind the financial statement, a public financial statement that's placed on the record,

[00:32:31] Speaker 01:
is going to really start a whole new proceeding.

[00:32:33] Speaker 01:
And it goes to Commerce's administrative resources, the allocation of the investigative and enforcement resources of Commerce.

[00:32:42] Speaker 01:
That's what's at stake here.

[00:32:43] Speaker 01:
If you have to go through and look at financial statements, it's a whole new level of analysis.

[00:32:49] Speaker 01:
Commerce doesn't want to go there.

[00:32:50] Speaker 01:
They already have too much to do.

[00:32:53] Speaker 01:
And we believe that this is an abuse of discretion standard that you have to look at here.

[00:32:58] Speaker 01:
And Commerce did not abuse discretion.

[00:33:01] Speaker 01:
And it's a very, very high standard, as in the Torrenton case.

[00:33:05] Speaker 01:
And commerce absolutely met that standard, generally, when they say we're not looking behind financial statements.

[00:33:12] Speaker 01:
And in particular, petitioners didn't even raise it.

[00:33:15] Speaker 00:
Your time has expired.

[00:33:16] Speaker 01:
Thank you.

[00:33:24] Speaker 06:
Thank you, Your Honors.

[00:33:30] Speaker 06:
With respect to the Banks case, my understanding is that in Banks, this court was reacting to a court of federal claims decision that went beyond the court's mandate.

[00:33:43] Speaker 06:
So the case did not really get into, is this court bound by its own mandates?

[00:33:48] Speaker 06:
It was focusing, like many of the cases that involve the mandate rule, on the lower court or the agency's responsibility vis-a-vis the mandate.

[00:33:57] Speaker 04:
But in Banks, did this court

[00:33:59] Speaker 04:
having concluded that the Court of Federal Claims was required to follow the earlier mandate to have a separate second section of the opinion that says, we're not really bound or so bound by our earlier decision.

[00:34:15] Speaker 04:
We will now reconsider it or something like that.

[00:34:17] Speaker 06:
I don't think that issue was raised in banks at all.

[00:34:19] Speaker 06:
It was really, did the lower court exceed the bounds of the mandate?

[00:34:24] Speaker 06:
Not can we now also exceed the bounds of the mandate, or should we reconsider ourselves this original determination?

[00:34:31] Speaker 06:
It was focused, as my understanding is, on what the lower court was required to do.

[00:34:37] Speaker 06:
There's also an interesting question about what a mandate is.

[00:34:41] Speaker 06:
A mandate really just transfers jurisdiction back to the lower court.

[00:34:44] Speaker 06:
So the mandate does not itself, by virtue of being the mandate, somehow bind this court.

[00:34:51] Speaker 06:
The issuance of a mandate does not

[00:34:53] Speaker 06:
by the fact that there's a mandate that exists behind this court in perpetuity to a particular determination.

[00:34:58] Speaker 06:
It merely transfers jurisdiction back.

[00:35:02] Speaker 06:
With respect to the issues on the Ganges financial statements, the question posed by the court was not, did the parties have the opportunity?

[00:35:10] Speaker 06:
Why didn't the parties do X?

[00:35:11] Speaker 06:
The commerce, why didn't you do X?

[00:35:12] Speaker 06:
Explain to us why you didn't do X.

[00:35:15] Speaker 06:
And they have not yet done that adequately.

[00:35:17] Speaker 06:
And frankly, I'm a bit confused by Mr. Marshuk's claim that we didn't raise the question in our remand comments to the agency because we have a whole section in our remand comments to the agency on you should go get information from Ganges.

[00:35:29] Speaker 06:
So you can find that at beginning at 5272 of the appendix if you're interested.

[00:35:37] Speaker 06:
So with that I'll conclude my presentation.

[00:35:39] Speaker 00:
Thank you.

[00:35:40] Speaker 00:
We thank both sides and the case is submitted.

[00:35:43] Speaker 00:
We're going to take a brief recess at this point and the next case can start setting up.