[00:00:00] Speaker 04:
The last case this morning is K.G. Dong-Boo Steel versus Nucor and the United States, 2025, 14-11. When you're ready, Mr. Teslick.

[00:00:16] Speaker 00:
Good morning. May it please the Court, Adam Teslick for Appellate Nucor Corporation.

[00:00:24] Speaker 00:
There are two issues before the court in this appeal. The first is whether the Commerce Department's determination that the benefits conferred by the – whether the Department of Commerce properly reconsidered the issue of the benefits conferred by the first three debt-to-equity restructurings in Don Bustil's debt restructuring program. It was. Commerce complied with both governing case law and agency practice by citing to new record information and articulating reasonable legal justifications for changing its determination.

[00:00:53] Speaker 00:
The second issue is whether Commerce properly found that any benefits conferred by the first three debt-to-equity conversions passed through to KG Donbu's deal following the KG Consortium's investment.

[00:01:05] Speaker 00:
Especially in light of KG Donbu's concession of the pass-through issue in the initial questionnaire response and its failure to respond to Commerce's change in ownership appendix, Commerce's determination was lawful and supported by substantial evidence.

[00:01:19] Speaker 00:
Beginning with commerce is reconsideration of the first three debt-to-equity conversions. Commerce, like other agencies, may reconsider its prior determinations. What is done in the past doesn't bind it to the same outcome in perpetuity.

[00:01:32] Speaker 00:
As a general proposition, this is not in dispute.

[00:01:34] Speaker 02:
Let me get right to what I think is...

[00:01:39] Speaker 02:
My question, and I'm not sure exactly where the line is on this, but I just want to make sure I understand the facts. Commerce didn't come up with any new information directly about those first three transactions, right?

[00:01:55] Speaker 02:
No, it was not directly related, but it looked at a fourth transaction and it said, well, the facts, this fourth transaction, in comparison with those three, lead us to think maybe we were, you know, in retrospect, didn't come to the right conclusion.

[00:02:13] Speaker 02:
They didn't have necessarily a mistake, but they said, well, this fact that at least is indirect evidence of our mistaken view, or I don't want to say mistake, because that gets into a problem, I think, with the trial court's reasoning. Is that basically what Commerce did?

[00:02:30] Speaker 00:
That's effectively what commerce did.

[00:02:33] Speaker 02:
And how is that not, I'm sorry, I'm interrupting you. I'm just trying to get to it. How is that not in violation of commerce policy not to reconsider the transactions on their own?

[00:02:45] Speaker 00:
Well, the commerce policy at issue here is its general practice of not reconsidering prior countervailability determinations without new evidence.

[00:02:56] Speaker 00:
Here, our position is commerce cited to new evidence.

[00:02:59] Speaker 02:
Again, I'm going to interrupt you. Is this whole dispute boiling down to that the trial court seemed to require direct evidence? new evidence from those specific transactions versus the indirect evidence from the fourth transaction considered in light of those first three transactions.

[00:03:16] Speaker 00:
Essentially, that's correct, Your Honor.

[00:03:18] Speaker 02:
If we think that indirect evidence is good enough, then what Commerce did in its reasoning is sufficient.

[00:03:23] Speaker 00:
That's correct.

[00:03:25] Speaker 02:
Okay.

[00:03:28] Speaker 02:
Well, let me then move on to the second point, and then I'll let you go back to do whatever you want. On the second point, Commerce explained itself. I think that the trial court... And the first remand determination found the pass-through analysis insufficient, but then ended up in its final – the court's final decision, that's the one up here on review, didn't reach it because commerce initially – or finally caved to what the trial court kept telling it to do, as they ultimately end up doing a lot of times.

[00:03:56] Speaker 02:
If we agree with you on the first point – that the trial court was too restrictive in what constituted new evidence and a new rationale for reconsideration.

[00:04:08] Speaker 02:
Do we need to remand the pass-through issue to the trial court to reconsider? Because it doesn't seem like she has a final decision on that.

[00:04:18] Speaker 02:
And with correction of the first error, or is that just something because we have the same review that the trial court does, that we could just determine on our own that there's substantial evidence on the second point?

[00:04:32] Speaker 00:
This court could absolutely determine that issue on its own, Your Honor. So the Commerce Department addressed this in two separate occasions. First, in its final determination, and then in its first remand redetermination. So there are two instances of Commerce exercising its authority to address this in the first instance, and there are two instances of the court remanding.

[00:04:52] Speaker 02:
So our position is that the first two redeterminations... And I understand there's a procedural thing that they didn't respond at some point, so that's one way for Commerce to say that they didn't prove...

[00:05:04] Speaker 02:
that there's no pass-through. But did Commerce come up with an alternative basis on the facts, too, that we could review?

[00:05:11] Speaker 00:
Yes, Commerce cited two pieces of information. So it cited to the notice of final modification, which governs the pass-through question, And that provides that a primary consideration of commerce in determining whether a subsidy passes through is whether the government or whether the sellers of the company have operated in a manner to maximize the value of what is sold. Commerce pointed to a significant discretion between the prices paid by the creditor committee shareholders and the actual private investor in the KG consortium.

[00:05:42] Speaker 00:
It determined on that basis that the sellers of this company or these assets weren't actually operating to maximize their returns if you're paying five times more for the same asset than the other non-government entity is investing. So that's primarily how commerce rested its decision.

[00:05:59] Speaker 00:
But primarily, the determination was based on the fact that Keiji Donbu did not follow procedural requirements, did not respond to the change in ownership appendix, And in the first remand redetermination, there is actually a detailed discussion of the types of information requested in the change in ownership appendix and why it mattered for the purposes of the record that it was not there.

[00:06:21] Speaker 00:
And as this court has held, Commerce has broad discretion to develop and enforce procedural requirements related to the development of the record. And so on that basis alone, it's sufficient. But yes, Commerce did cite factual information to suggest that KG Donbu had not rebutted the rebuttable presumption.

[00:06:44] Speaker 00:
So under governing case law, commerce may reconsider prior determinations based on information regarding the operation of a subsidy program, but it may also reconsider to correct what it believes are errors in its prior determination or simply because a changed methodology would lead to more accurate results. The only requirements are that commerce acknowledge the change in position and that it provide a reasonable explanation that is supported by substantial evidence.

[00:07:10] Speaker 00:
With respect to the debt-to-equity conversions at issue here, Commerce satisfied both of these requirements. First, Commerce acknowledged that it was changing position. Second, it provided adequate explanation for its reconsideration. This explanation both cited to new evidence and articulated sufficient legal justifications for the outcome. There was new evidence on this record, which was not identical to the record of the prior reviews.

[00:07:34] Speaker 00:
A fourth debt-to-equity conversion occurred during this period, and this debt-to-equity conversion coincided with an investment by a private investor that was not a member of the creditor committees. This factual change is also not in dispute. The only question is whether Commerce, as the finder of fact, reasonably determined that the circumstances surrounding the fourth debt-to-equity conversion were sufficiently related to the program as a whole to warrant reconsideration.

[00:07:59] Speaker 00:
This is a question of fact that should be reviewed for substantial evidence, which means could a reasonable mind conclude that the circumstances of the fourth debt-to-equity conversion shed light on the conversions that preceded it?

[00:08:10] Speaker 03:
If there isn't some relationship between the fourth determination and the earlier determinations, could Congress nonetheless decide, well, we don't like the earlier determinations. We don't think those were the best decisions. We're going to change our mind.

[00:08:27] Speaker 00:
Absolutely, Your Honor. So Commerce could have just said, again, conceding for the sake of argument that that's the case, Commerce, there was no new evidence on the record sufficient to justify reconsideration. Commerce could have simply looked back and said, we got this wrong, and that's what it did here.

[00:08:43] Speaker 03:
I mean, even if Commerce's position is that we don't look back without new evidence, they can ignore that? And just say, well, in this case, there's no new evidence, but we don't think we did the right thing. We're going to change our mind.

[00:09:00] Speaker 00:
Well, they didn't ignore their past practice, Your Honor. So they did cite new evidence on the record that Commerce believed was sufficiently related to the first three swaps to warrant the restoration.

[00:09:10] Speaker 03:
Well, I understand. This is more hypothetical. But the question is – How do we balance commerce's regular position of not reviewing prior reviews without new evidence and the notion that commerce can change its mind if it wants to?

[00:09:30] Speaker 00:
The stated agency practice is just that, Your Honor. It's an agency practice, and just like any other agency practice, commerce can deviate from it as long as it provides good explanations. And both this court and the CIT have held that correcting legal errors and making determinations consistent with longstanding practice and regulation is a sufficient justification.

[00:09:49] Speaker 02:
So even without citing... Or even just a change in policy, I assume. Correct. I mean, they could say, look, we have this practice. We usually don't. changed positions without new evidence. But here, we've reconsidered our policy, we are changing our policy, and here's the rationale for doing that. As long as that holds up, even if it's in conflict with their practice of not changing without new evidence, as long as it's still based upon substantial evidence and not arbitrary and capricious, they can do that, right?

[00:10:20] Speaker 00:
That's correct, Your Honor. And we cite a couple of examples of this in our brief. We never read that general policy to be commerce foreclosing its ability to reconsider a determination simply based on argument.

[00:10:31] Speaker 02:
Let me be clear, because I think I understand this, but commerce's views now that those first three – actually should have been countervailable, doesn't actually do anything to the actual review periods for those first three. They're done, and the rates determined in them are done, and Commerce is not going back and changing the rates because they found – that it should have been counter-available. It's only going forward from the fourth review.

[00:10:57] Speaker 00:
That's correct, Your Honor. So everything that happened in the first three reviews, it's water under the bridge, entries have been liquidated, duties have been assessed, and those duties are not being modified, nor are any adjustments being made to the duty rate in this POR based on what happened in those reviews. This is simply based on the amount that's attributable to this POR going forward based on Commerce's allocation methodology for non-recurring subsidies. Okay.

[00:11:20] Speaker 00:
So if there's no more questions, I'd like to save the rest of my time for rebuttal.

[00:11:24] Speaker 04:
We will save it for you.

[00:11:44] Speaker 04:
Mr. Mills.

[00:11:45] Speaker 01:
Yes, sorry, Mr. Mills. No problem. Good morning. It may please the court. I'm Brady Mills from Taft on behalf of Plaintiff at Police, Dongbu Steele.

[00:11:55] Speaker 01:
Contrary to appellant's arguments, this case involves a straightforward violation of the SKF principle that is aggravated by the fact that Commerce disregarded its own practice as memorialized in the instructions in its questionnaire, that it will not reconsider previous determinations regarding the counter-availability of a program absent new evidence.

[00:12:18] Speaker 02:
Why isn't the evidence that arose from the fourth transaction indirect evidence about what happened in the first three?

[00:12:26] Speaker 01:
Well, Your Honor, the way these debt equity swaps work and the way Commerce calculates the benefits, they're all very separate and distinct events. So the first one was in 15, the second was in 16, and the third one was in 18.

[00:12:39] Speaker 02:
Commerce gave an explanation. They said these first three all involved – at the time they said there's enough evidence that – independent or private investors were getting the same whatever benefits as the government so that they didn't see that as counter-available. Then they get to the fourth one, and you get a more independent private investor, and they say, oh, well, this private investor did not look at this transaction in any way similar and required a lot more stuff, and that leads us to think that we were wrong.

[00:13:14] Speaker 02:
about the first three, and that there should have been a count available. Why isn't that indirect evidence about those first three?

[00:13:20] Speaker 01:
Yeah, so, Your Honor, what I would like to discuss is that, you know, part of the history of this case is that in the first... Can you just answer my question about why you can't consider evidence from the fourth?

[00:13:32] Speaker 02:
Because this is where I think the problem for me with the trade court's decision is that she seemed to suggest that you can't consider indirect evidence, that it had to be direct evidence related to those three transactions, not evidence from the fourth transaction that called into question the three. Do you agree that evidence from the fourth transaction could be sufficient for commerce to call into question its views on the first three?

[00:13:57] Speaker 01:
No, I don't.

[00:13:58] Speaker 02:
If we, as a matter of law, think you're wrong on that, then there's a problem. Okay, well... What's your argument for why they can't?

[00:14:06] Speaker 01:
Because, again, as I started to discuss, just the way these debt equity swaps work, I mean, there was decisions made in 15, 16, and 18 where there was evidence that related to those decisions, and then Commerce made a determination. So what happens in 2019, four years later from the first debt equity swap, that is not relevant to whether in 2015 Commerce's determination was... I'm sorry?

[00:14:30] Speaker 02:
Commerce's view it was...

[00:14:33] Speaker 02:
And they explained why it was. And we have to judge that based upon whether there's substantial evidence for that and whether it's arbitrary or capricious.

[00:14:43] Speaker 01:
Okay. So part of our argument is based on the fact that they had a practice in their questionnaire that they needed new evidence. Right. They've got to give an explanation.

[00:14:51] Speaker 02:
You have to stop talking over. Oh, sorry. I understand I'm interrupting you, but I get to do that because I want to get to the questions. I apologize.

[00:14:58] Speaker 02:
They get to do that, right? If they say our policy is this, sure, it's their policy. Commerce can always come in and say, yes, our policy is this. But in this case, we're not going to follow it because of these reasons. And they're allowed to do that. So just getting back and saying their policy is this, their policy doesn't help you for me in this case. So the question is, why was it not relevant that the factual circumstances of this Fourth one illuminated what may have been going on in this third one in a different light and caused them to reconsider it.

[00:15:33] Speaker 01:
Your Honor, so again, my position is that just because the later in time aspect of it and the fact that the way Commerce evaluates these debt equity swaps, what happened in 2019 is not relevant to those already decided decisions. But moving past the evidence point, Commerce still has to show that their change in agency practice was reasonable, that they gave good reasons for why they changed their practice. And so getting into that issue, right, under SKF and the cases, Commerce – Putting aside the evidence issue, they have to give good reasons why they're changing their mind.

[00:16:06] Speaker 01:
And so in this case, in the final results, Commerce, you know, pointed first to the existence of these fourth debt equity swaps. You know, and the lower court, you know, correctly found that, you know, your policy is to you need to have new evidence. And here, you know, the court found that evidence related to something that occurred in 2019 does not change, you know, is not relevant to your determination, you know, to that.

[00:16:29] Speaker 02:
That's legally wrong then. move past that and explain to me why commerce's rationale is not reasonable.

[00:16:36] Speaker 01:
Yeah. Okay, so commerce, in the first administrative review, there was an appeal of the first two debt equity swaps. And in that litigation, the government defended its determinations that there was significant private investor participation in the first two debt equity swaps. They specifically defended the fact that the practice that they had applied, that their determination regarding significant private investor participation was consistent with its practice, okay? And so now Commerce has basically stood behind its decision and its determination and how it evaluated whether private investor participation.

[00:17:10] Speaker 02:
There's no dispute. For the first three transactions, Commerce said not count available. sufficient private investor thing to check whatever. None of that history is disputed. They don't dispute it.

[00:17:26] Speaker 02:
All that's at issue is, is the rationale given in the fourth one for saying, look, we have new evidence on the record in the fourth one that suggests we came to the wrong conclusion in the first three. And therefore, we're going to now find that those should have been countervailable and look at this in a new light. Why is that an arbitrary or unreasonable determination?

[00:17:50] Speaker 01:
Because, you know, it's true that commerce can't go back as to the first three debt equity swaps and sort of reliquidate the entries or whatever. But the fact of the matter is commerce, you know, viewed the evidence in each of those cases and made a determination. So there's three final determinations basically looking at this issue saying that that this program, that there's no benefit from these debt equity stops. And now in the fourth review, there's a certain, even though there's no retroactive effect in terms of liquidating the entries or whatever, it's basically saying, oh, everything we said before and what we defended in court in the first review is, you know, we're going to disregard that and we're going to just change our mind.

[00:18:29] Speaker 03:
But they have expressed a good reason why they want to do that.

[00:18:35] Speaker 01:
Well, we dispute that the existence of a fourth debt equity swap in 2019 is a good reason for reconsidering. It's like they want to do it from what they already decided.

[00:18:47] Speaker 02:
You're talking over me. Tell me why. Not tell me they've done it this way a long time. Because what I hear from you and what I hear from the trial court's opinion is when commerce starts doing this, they really can't change their mind, even if they have a decent reason.

[00:19:03] Speaker 02:
Why isn't the reason they gave in the fourth determination a sufficient reason for reassessing whether it was counter-available in the first?

[00:19:12] Speaker 01:
Because in the fourth debt equity swap, the fact that there was a private investor that participated in that doesn't change the fact that there were private investors in the first three debt equity swaps.

[00:19:32] Speaker 02:
and was clearly more independent and treated these transactions in a different way. You may disagree with that, but that's what they said, right?

[00:19:40] Speaker 01:
Yes.

[00:19:41] Speaker 02:
Essentially. I don't need to get into the nitty-gritty details of what they said. They understood the facts there to be a different kind of independent investor and that that, in comparison to the private investors in the third, suggested they weren't so independent. Is that not – Assuming the facts are true, you can dispute the facts, but that's substantial evidence. If that's true as a matter of fact, why isn't that a reasonable explanation for a change in policy?

[00:20:11] Speaker 01:
Okay, so first of all, I would say that the facts that related to the fourth debt equity stop and the fact that there was an outside private investor— Hey, don't talk to me about the facts.

[00:20:19] Speaker 02:
I told you accept the facts are true. Well, there's a factual distinction. I understand. That's a different question. I'm not asking you about the facts right now. You can argue that they're not substantially— Substantial evidence, I want to know why you think commerce's explanation, if supported by substantial evidence, is unreasonable.

[00:20:38] Speaker 01:
I think it's – again, I think it's unreasonable because what occurred in 2019 with a separate outside private investor does not inform what the private investors did in the first three debt equity swaps. And again, Commerce defended – and I know you obviously don't think this is that important, but the fact that Commerce defended in the first two debt equity swaps –

[00:21:02] Speaker 02:
and ignored those first three ones entirely and just said we're changing our mind, they have to acknowledge that they're changing their mind and give a good reason for it. But they did both of those things. So you have to attack whether it's a good reason or not, not just that they're changing their mind.

[00:21:18] Speaker 01:
Okay, I mean, again, I still believe that it's almost an issue of judicial estoppel. If the government argues— Well, that's not the law.

[00:21:30] Speaker 02:
If you think that administrative agencies are stopped from changing their position with a rational explanation, then you're just wrong as a matter of law. I mean, that's clear even under SKF. It's certainly clear under Fox, which is a Supreme Court case.

[00:21:45] Speaker 01:
The point I'm trying to make is the fourth debt equity swap, Commerce said that that was a relevant change because it was an actual outside private investor. That was sort of their rationale. Oh, we've got an outside private investor.

[00:21:57] Speaker 02:
You think that's not a good reason?

[00:21:58] Speaker 01:
No, I don't think it's a good reason. Why?

[00:22:00] Speaker 01:
I'm sorry I'm not getting my point across, but in the first two debt recovery stops, Commerce defended its practice that it could look at the private investors that were existing creditors at the time, right? So it considered the issue about whether you had to have an outside or an inside.

[00:22:16] Speaker 02:
The fourth guy wasn't an existing creditor, right? I'm sorry? In the fourth one, it wasn't an existing creditor.

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

[00:22:23] Speaker 02:
That's exactly the point. Commerce said, Because this is a different type of investor, his willingness to take this on with much more support suggests that these people earlier weren't acting independently. I don't understand what's wrong with that rationale.

[00:22:42] Speaker 01:
Okay, I mean, again, in the context of the history of this case, another point I'm sorry, Your Honor, to make is that Commerce had also looked at this issue in the context of loans. So there was loans in the workout process and there was debt equity swaps.

[00:22:58] Speaker 01:
And so in the case of loans, Commerce considered all this evidence about government control over the creditors, and they found that in the loan context, they couldn't use the loans from the private creditors because of the government influence, right? And so Commerce was aware of the influence of the government on the creditors committee. And the reason why Commerce is now saying that actual outside private investors is significant is is because somehow it's as though they weren't aware that at the time of the first two debt equity swaps, the creditors that it found could participate in the debt equity swap and could be used as a benchmark were also subject to that same government influence that was in the loan context.

[00:23:38] Speaker 01:
And so, again, it goes to the point of this being like an arbitrary change, that Commerce was fully aware of these facts, right? They actually litigated this issue, and then all of a sudden they just decide in the fourth review, oh, well, there's an actual outside private investor in this fourth review, so we're just going to reverse what we had previously determined. And I'm just saying that we think that that's an arbitrary change in practice under this court's SKF decision.

[00:24:06] Speaker 03:
Well, you know, even if you have a reasonable argument, the problem that I see for you is that the standard of review is substantial evidence. And obviously, Commerce took a different view of the impact of the fourth determination. And they thought that that determination opened their eyes as to the propriety of their first determinations. And they took another look at it. And the question is not whether you have a reasonable argument that cuts the other way.

[00:24:38] Speaker 03:
The question is whether commerce had a reasonable basis to take the position it took in reassessing its earlier determination. And if their argument is that they had a good basis and there's substantial evidence to support that, then art for us to overturn it no matter how effective your argument might

[00:25:02] Speaker 01:
So if it pleases the court, I only have two minutes left. I just want to just briefly touch on the pass-through issue, just because if the court was to sustain Commerce's change in agency practice, the question arises whether the KG Consortium's purchase of Dongbu Steel through the corporate workout process extinguished those subsidies such that they don't pass through

[00:25:27] Speaker 03:
Do we have to return that to the CIT for a determination in the first instance? Or can we decide that while the case is here?

[00:25:37] Speaker 01:
I mean, our position is that because the lower court, because Commerce in the second remand and the lower court agreed that the issue of pass-through was moot because of Commerce's determination that there was no benefit from the first few derogatory stops, we believe that the actual merits of the record evidence determining whether there was a pass-through or not was not addressed below, and so it would be more appropriate for the trial court to reconsider that. But if the court did, I mean, I recognize the court has de novo review, so if If the court did look at this, the points I wanted to make is that Commerce found that the subsidies passed through because Dongbu Steel did not submit a response to this change in ownership appendix.

[00:26:15] Speaker 01:
And so I just want to make clear that at the time Dongbu Steel submitted his response to the questionnaire, Commerce had never found the existence of any non-recurring subsidies and had consistently for three reviews found that there was no benefit from these debt equity swaps. So at the time Dongbu submitted its questionnaire, it had no basis, no reason to be challenging a baseline presumption about non-recurring subsidies that did not exist.

[00:26:38] Speaker 01:
However, if... Dongbu Steel, even though it didn't submit a change in ownership appendix, it did submit voluminous information regarding the circumstances of the sale of Dongbu Steel to the KG Consortium that went to the issue that showed that it was an arm's-length transaction for fair market value. It was an open bidding process, and the KG Consortium purchased Dongbu Steel as the highest bidder in an open bidding process. And so the record evidence shows that there was an arm's-length transaction for fair market value before the subsidies were extinguished through the purchase.

[00:27:09] Speaker 04:
Thank you, Mr. Mills.

[00:27:12] Speaker 04:
Mr. Teslick has some rebuttal time.

[00:27:21] Speaker 00:
Thank you. I will be brief and just make a few quick points on rebuttal.

[00:27:25] Speaker 02:
First, can I just ask you to address what he just said, because that gives me a little bit of pause, that they didn't submit the appendix because they didn't expect it to be an issue.

[00:27:38] Speaker 00:
Absolutely, Your Honor.

[00:27:39] Speaker 02:
Can you just respond to that?

[00:27:40] Speaker 00:
Yes.

[00:27:43] Speaker 00:
So as Commerce emphasized here, the proper treatment of this program has been a contentious issue since the very first administrative review. We have argued it aggressively in review after review after review. And in this case, there was a new fourth to debt to equity swap involving an actual private investor that was a non-recurring subsidy and that Commerce had not addressed. So there was a non-recurring subsidy to be addressed in this program. On that basis alone, we think it was unreasonable of KG Dombu to just presume that commerce would not find any non-recurring subsidies here.

[00:28:14] Speaker 00:
It's also the case that new factual information may be provided throughout the course of a proceeding. We can allege new subsidies. And at the outset of the proceeding, when KG Dongbu conceded the issue, it had no reason to believe that we would not do that.

[00:28:30] Speaker 00:
And finally, I would just note that this was very early in the proceeding that KG Dongbu conceded this issue.

[00:28:35] Speaker 02:
So let me make sure I understand what you're saying. Absolutely, Your Honor. And that's true both with respect to the first three conversions and the fourth. So even under Commerce's stated practice, they won't look back without evidence.

[00:29:01] Speaker 00:
We had an entire administrative review to supplement the record with new evidence, and in fact, we did.

[00:29:08] Speaker 00:
And with respect to the fourth, it just hadn't been addressed yet. So KG Donbu had no reason to believe that Commerce would just continue its past practice with respect to the fourth conversion, especially when there was an outside private investor, which is a meaningful factual distinction from between the first three and the fourth.

[00:29:29] Speaker 00:
So just very, very quickly on this question of the program-wide basis of commerce's consideration.

[00:29:37] Speaker 00:
In the DRAMS case, commerce explicitly rejected the notion that these debt-to-equity conversion or these restructuring programs should be considered on a transaction-by-transaction basis. And that was sustained by the CIT in the Heineck Semiconductor case at 391 FSUP 2D 1337.

[00:29:54] Speaker 00:
And that matters here because this review was the first time that Commerce had an opportunity to actually look back at the program from start to finish and see how it started, how it proceeded, and how it ended.

[00:30:06] Speaker 00:
Second, I would just like to quickly address the rationale for Commerce's change in practice other than the new factual information. Commerce provided a detailed explanation of why it thought what it did in the first administrative review was inconsistent with both its rule and longstanding agency practice thereunder. It stated its longstanding practice of approximately 40 years of relying on an outside private investor and not treating an inside investor who's just pouring money into this company in hopes of recovering what they've already lent as to be an actual private investor seeking to maximize returns.

[00:30:40] Speaker 00:
It also cited the bottom-out refrigerator freezers from Korea case, where it considered the nature of the government influence over the creditor committees. And in the first administrative review here, it did neither of those things. It leapt directly to a rote numerical analysis of the volume of shares purchased.

[00:30:57] Speaker 00:
And I think with that, unless there are further questions, I will yield.

[00:31:02] Speaker 04:
Thank you to both counsel. Cases submitted.