honors this is a case about the commerce department changing its mind years after making a final decision and then penalizing one died for that very change the government bases its entire defense of the application of adverse facts available for the notion that it be related to the quote discovered and dies allegedly hidden service related revenue or as are the court of international trade  was invalid two things that the court should remember above all else in this case commerce is awareness and congress approval when i st got a little confused about shari i thought the issue here was where there under six hundred and seventy seven d the congress had to give you an opportunity to remedy if it found that there was something wrong with the data right had concealed what was in the data that the during the course of the proceeding doesn't make any difference whether there was concealment or not in terms of whether there should be an opportunity to  far this goes back to the idea that the commerce department of hers that it discovered a service related revenue and that's why it was excused from providing the deficiency notice under six thousand and seventy seven dollars andy but as the record demonstrates there was no such concealment there was no sudden discovery i understand that but i don't think you're answering my question my question is a hypothetical suppose there was concealment is there an obligation  concealment is discovered to give an opportunity to remedy absolutely the language of one thousand six hundred and seventy seven and b says that as soon as commerce quote determines that information is missing it shall promptly inform the person submitting the response it makes no reference to concealment there any kind of intense of whether the information is submitted or not once congress discovers that there is no information or that there less information than it asked for it must notify the responde said as discussed we would contest this notion of concealment in this case st commerce was at all times fully aware of one dies our reporting based on one dies explanations and the documentation on the record and then another change order two thousand nine hundred and three and then at twenty nine o seven we see supervision supervision in this case is the service that is discussed and you can see the revenue for supervision being before verification therefore indicating that the department had an awareness of what was in the sales documentation and then and you didn't create a field separately reporting th correct because what hyundai i was doing was making clear to the department that it would not create such fields where these services were covered by the terms of sale explained that to the department the department understood it indication that hyundai improperly reported its sales data based on the documentation on the record including the sales traces review that verification so what the commerce department was saying here was we've looked at th documentation we see the separate line items we still find that fund has reported service related revenue consistent with the terms of sale and the fact that there are these line item break out is of no relevan that determination i would i would further direct the court your honor if i may as mentioned earlier to appendix ten thousand and three a lot of it depends three hundred and forty eight those are additional sales documentations were received and this was before the court of international trade highlighted the specific separate revenue that again the department saw at verification and was aware of in making that final decision so with that in mind the department had this full awareness it's all of these documents out the administrative review it reviewed them again and verification and it failed to provide a deficiency notice and that's really very relevant here because it completely belies the government's argument that commerce quote discovered the s r and that concealed it may have not reported it but that reporting was with the basis of reporting of the terms of sale which as discussed the department approved in the final results of the nd administrative review just as it had in previous for of years and hyundai made clear and that's what we and seventy seven as discussed earlier requires the department as soon as it realizes that information is missing from the record to issue that deficiency notice it failed to do so during the review and it failed to do so again when it was remanded to the department after proceedings at the court of international trade because of that failure and because that failure is not excused there is no basis to a application of facts available and no defense for the government in addition to its awareness the government the department of commerce also approved our reporting as we discussed on appendix ninety six  conclude that there was necessary information not on the record could not conclude that i withheld information could not conclude that it acted significant and to significantly to impede the proceeding and further on appendix nine dollars the commerce department stated that due to its analysis of the comments found to have responded to the department's various for press for information to the best of its ability and that goes to the application of an adverse of the respondents abilities efforts and cooperation and may apply an adverse inference only under circumstances in which it is reasonable for commerce to expect that more forthcoming responses should have been made here it would not have been reasonable for any more forthcoming given the department's awareness and given its approval of hundreds of our reporting indeed we even saw this after the final result and the department's ministerial error memorandum at appendix ninety seven  verification it's better better but that's not actually right you had plenty of notice about what their methodology once and for verification we disagree with that in so far my question is you have no contrary to what you said in your brief you had notice that they were doing it in a way that you thought was noncompliant we disagree with question why didn't sixty one distinct answer the question there tell you what they were doing told it told congress what they were doing but it didn't reveal that there were in fact service related revenues that they want reporting as a result of revenues well beyond what hyundai had originally reported and commerce only had a notice of those at verification and that was the basis for commerce applying the partial adverse facts available for the reasons explain doing excluded service related revenues and that was the key distinction that's why congress did not have noticed before verification why it wasn't required to give notice under six thousand and seventy seven and b which provides that out give the opportunity to correct in compliance with the time limit set for the investigation there was a time limit placed on submission of fact a one way nation to wait wait you're being totally confused if they if you had notice that their methodology you were obligated to give them an opportunity to correct right during body only if we have noticed that there was something wrong suppose we hypothetically working with greed that they didn't give notice contrary to what we've been discussing where is the stance that excuses you're giving them an opportunity to remedy ok the extent practicable provide that person with an opportunity to remedy or explain the deficiency in light of the time limits established for the completion of investigation reviews under the subtitle and that's the key point here this information that that hyundai's reporting did not match up with what commerce had asked for was only discovered a verification that was after the time limit for submission of factual information so that was beyond the point when commerce would be expected to give notice under six thousand and seventy seven dollars and the and that's why the fact that the information didn't come up with verification which is not supposed to be sufficient information it's supposed to be confirming information that's already been submitted commerce we examined the record and reached a different factual conclusion on remand and again it is permitted to do specifically for example under the court's decision and tongue development company that congress can reach a  they had didn't have the information prior to the deadline for factual submissions because it had this information and that you just chose not to report to congress in the form and manner commerce requested hyundai's said well which is how commerce accepted it in the prior investigation and review and we're going to report the same way congress a permitted off a different question it should get the information it wants not the information one day when i see that i've reached the end of my time to have any more  bring into this discussion a little bit of context that i think would be very helpful and this is the review underlying this appeal is the nd administrative review of this anti gun thing to the order the appeal of the rd administrative review they're not arguing that they did it correctly they're arguing that when they did it incorrectly commerce was aware of it that have given them an opportunity to correct that's not an issue in the other case not yours that's questionnaire responses and to be as brief as i can converse ask if the invoice to your customer includes separate charges create a separate field and report those charges one hundred i provided an incomplete response and it did not alert congress to the fact invoices to its customers did in fact include that information and so to the extent that it relies on if you bring your prior to the voices right they gave them invoices and they describe exactly what they were doing not included in the purchase order for the sale those of the revenues that hyundai reported that says absolutely nothing about the fact that there were in boyce's numerous invoices that included separate charges and that commerce asked somebody to report and ask them to create a separate field for so this response is incomplete and it does not disclose the response to the factual question that commerce asked this is congress attempt to build the record in this review to gather facts from hyundai close during the administrative review but commerce is understanding of the facts and what hyundai had withheld that's what evolved and that's what was explained on dream and if a responded doesn't cooperate during a review and give you everything you ask such discovery as the result of the department's self proclaimed evolution of how it considered are made after the final results if awareness and approval of one dies are reporting  ies any notion of a discovery the government's defense therefore is on tenable the only reason the c i c excuse commerce from providing the statutorily required deficiency notice was because of that repor discovery and without it there is no justification for the failure to provide that notice and therefore no justification for the application of facts available again with the full awareness of our reporting commerce concluded that there was government again in the final results stated no indication of improper reporting there was sufficient time to issue a deficiency notice and nothing in the statute justifies the department's failure to do so likewise there is no justification for the for the application of an adverse inference again the department unequivocally found no basis to conclude that i did not cooperate to the best of its ability its quote evolution on remand is the only reason why  this morning the honorable court is adjourned until tomorrow morning at ten a