the united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court explanation on this issue in this case the court didn't give commerce a review and so that's why that additional explanation does not appear in the record of this case however it is our position that it is an individually  reman determination which included the explanation that it was an individual we investigated rated and there was no appeal taken by either party after the reman and so on so on although it's a c i t decision after re one persuasive it found that as the basis of its holding its holding that because congress not made an affirmative factual finding that there were other chinese state owned producers who made exports during the period of a necessary for to reach that question although it's called the statutory authority into question and certainly if the court were to look at that we think the appropriate response would be either to affirm converses reasoning for the same reasons and then went on a non market economy country absent the rebuttal of that presumption it investigated the entire state owned entity has individually investigated race in the investigation and carr investigation of a particular firm in fact commerce on the double coins data was a part of the state and then the and therefore incorporated into the state on rate for the purposes of this administrative review therefore imposed the adverse china wide rate in the investigation here congress didn't send out questionnaires to all those firms again not obligated to each successive review and that's the the was similar to what happened in diamond sawblade which is if there was a firm that was individually made mandatory responded that was found to be state controlled commerce incorporated that entity's data period of review we disagree with that because commerce is not under an obligation to reinvestigate the composition of the china wind energy in each successive for review about whether there is any basis to conclude that the antidumping assessment rate applied to imports by c m a is in fact an individually investigated rate the record of this case shows that it is not and investigated rate because the underlying anti dumping orders been revoked this case at this point only concerns the antidumping liability to be paid by a us importer c m a for specific import entries stands to very painstakingly goes through important distinctions between the record of that case and the record of this case in particular judge stands to stressed that in diamonds  were multiple twenty one other parts of the enemy entity that were before the court were part of the part of the case and for which there was no cooperation and in fact  footnote two of diamond saw blades this court took great pains to stress the presence of these twenty one dollars non cooperating companies so judge stands to noted the key difference in this case which is that there were no other parts of the enemy entity the only part of the enemy entity that was part of this review that had entries during this review period was the c imports from double point and judge stance who took great pains to explain that commerce had not directed any questions to the rest of the entity there was nothing at all in fact judge stance who also took great pains and this is at page thirty three of the slip up version of his decision he took great pains to note that in this case in the decision memo in this case at page nineteen commerce specifically found that there was no lack of cooperation from any of the other parts of the enemy entity so you have a totally different factual record and you have a totally new decision by judge stands to c m a to goes through systematically in a case where you have no lack of cooperation he went through what record information was before commerce and what decision could be made about the assessment rate for these important entries given the information that was before commerce on this particular record and he stressed correctly that given the statutory provision governing the use of facts available commerce is factual finding in this case that there was no lack of cooperation and no evidence in this case that there were even any other entities or entries at all we don't know commerce makes a his reply brief about commerce isn't under any duty to investigate but that kind of misses the point because at the end of the day the question is what record information  commerce have her making its decision we agree that commerce has discretion about how to frame its investigation but commerce must live with the consequences of a choice is commerce cannot refuse to investigate whether there were any import entries by other parts of the enemy entity commerce cannot refuse to seek any information from any other parts of the enemy entity congress can refuse to confirm whether in fact during this period of time there were any other parts of the enemy entry instead what we have here is commerce speculating reaching back almost a decade to stale factual findings which mammary not still be true so no do investigation no facts on the record here commerce then has to live with the consequences of having narrowly focused it investigation and has to make a decision that is consistent with the factual information that it actually did correct collect now this is particularly true in this case because in this case the only entries we're talking about are those imported by c m a the statue specifically requires commerce to determine an assessment rate the dumping li for making a determination about the proper dumping liability for these specific entries it's not enough for commerce to mention in passing it's notice of initiation mentioned in passing the enemy entity indeed it's commerce both through its policies and how they were applied in this case it's commerce adopted policies to narrow with inquiries in adminis e review to only those companies for which are of us requested and for only those actual entries during the review period there's no such thing as an unspecified portion of the enemy entity in what judge stance to said was not that he was he was imposing the individually investigated rate because c m a itself was cooperating and thus was entitled to the individual investigated unfairness of all of this he took your guidance from saw him and saw blades instead he said on this case given the facts congress had in this case what is a perm miscible p r c why rate and he basically said well it can't be the carry forward rate because the carry forward rate is hugely inflated by adverse facts available since commerce found in this case is this notion of kind of failure information unspecified portions missing information lack of cooperation basically a reason to impose the punitive rate which in this case was more than two hundred percent from the original investigation a clearly punitive rate based on the lack of information lack of cooperation which basically the petition alleged rate wasn't even based on anything involving any of the parties so judge stance who said under the statute commerce is not allowed to use a rate without some evidence that someone didn't cooperate someone failed to provide the information that had been requested but in this case there was no failure to provide information by any party not by c m a not by any other alleged parts of the enemy and the mouth by anyone to the contrary in this case congress made a specific factual finding that all parts of the p r c white entity or none of them were found to be non cooperative and that finding commerce can't run away from that finding commerce tries to ignore the implication of that finding but commerce can't run away from it and that's the reason why judge stands to said you can't just pull forward this rate so we think this case can be decided based on the unique facts of this case but your honors even if you were to find that you weren't persuaded by these facts specific arguments we would urge you to go back and address our other argument which is the restriction on the ability to impose a rd type of rating because with all due respect we understand commerce the shift in position here but in this case commerce made an administrative determination that was grounded in its belief that it could impose this rd ra permissible under the statute and the court should clarify that point the judge should resolve this issue with the court should resolve this issue that is now being debated in case after case after case in the c i t and make clear that in every case congress has to make clear is the rate and investigated rate or and all of its rate and most importantly honors if that is investigated rate the facts have to show that the this case the court doesn't need to address how much to divest a geisha is needed because in this case there was no investigation at all and when there is no investigation at all in our view there cannot be investigative rate and in closing your honour's that's the thought i would want to leave you with in this case the reason that this court should uphold judge danseuse decision and should not allow commerce to impose a punitive one hundred percent dumping liability on these entries by c m a the reason is that the uninvestigated parts of the enemy entity in this case they weren't part of this particular review and your honour's these other entities if they exist at all can't answer questions that commerce never put to them and that's the essential teaching of the statute and all of this court's decisions that apply the statute to limit commerce discretion when using adverse facts available commerce has to ask questions there has to be some refusal to answer the questions and that is the predicate under the statute for posing the punishment of an a if a right if there are no other questions from the court i have concluded my argument and you because this is a later review commerce we did not go out and reinvestigate the composition of the p r c wide rate in this particular review the congress is not obligated to do so there's nothing in the language of best individually practice including the procedure that was followed in this case congress did not make an affirmative finding that there were no other producers from the p r c during this period with you instead as noted on page one hundred and seventy nine of the record it just said that there was no information as to sales and production from any other firms double coin argues that the lack of this reinvestigation means that congress would need to assume that there were no other such producers that the only state control producer would double click but that's not how the review was conducted nor how it was required to be conducted commerce requests received specific requests for review for individual firms and then then issued