the trade action committee in broad terms as tax challenge challenges two aspects of congress final results of the administrative review one part of the action challenges the selection of companies that were individually investigated the other challenges how commerce to find the specific sales that would be subject to the review for two different respondents on the first issue the relevant question before the agency was which exports will be individually examined those selected for individual review determine the dumpy margins assigned to the vast majority of exports not selected for individual review in this proceeding question whether or not under the statute but under practice if the practice of the agency is to solicit comments and to keep open the option of one they're not to use sampling or to use the largest volume then in this proceed agency was what sales will be agency review to determine and to what extent the sales were made in the united states less than fair value during a review period or company specific challenges which are at the back of a brief involving time in my entire union both relate to this question reported a subset of those sales those with just those within which states that proceeded to the period of review commerce ultimately included one of those extra sales and its review congress reason that because the merchandise had entered the us during the period of review this was the first time that the sale could have been reviewed however under that logic congress should have requested the time i provide information relating to all sales made by that company that entered the us during appeal or but had not been included in the previous administration invoice states were during the appeal or we argue that because the entry dates are because the sales dates will proceed to appear or that they should all been excluded commerce decides that of one of those four sales because it happens to have an entry date that's during this pill or that it ought to include that said and then says in arguments to the court below that this is appropriate because it's statutory mandate is to determine a margin for all entries during a period review but commerce never asks throughout the investigation  congress is trying to get to is to to to review all sales that they didn't that had entered during this period a review they didn't achieve it by just selecting this one particular sale instead they said well before sales that you have volunteered we will choose one and it was to the exclusion raised our issues our substantive concerns regarding responsible action in five separate filings to god commerce early in the proceeding we had set out of philly our arguments against response selection on both of those issues that commerce issue a memorandum that set out its reasoning for its response election and later after an additional objection made by aspect had issued a letter in august that said that its reason that its determination was final and that its r it had been so fully set out in the memorandum and right in this case we would see the say that it fits within the narrow exception because we had been told by the agency that the determination was final that there was nowhere to go had been briefed all of the issues before hand it in the in the august it's six forty three six forty four determination which ends up being final as to respond selection whether this was a final determination i don't know the answer to that i mean a the basis is one the basis for the ruling was that we did not include in our case prevent for that sole reason the exhaustion remedy between what what took place in august where we were star objections and set it up and then got a letter back excuse me in august saying that they had made their determination and what occurred at the very end of the process is they would have gone through all of that process they would have collected all that information and they had to be gauged in verification with respect to one of the respon thank you your honor may it please the court the department of commerce in the court of international trade both acted well within their discretion here with respect to the selection of respondents just to back up to the merits for a second ad hoc requested that the department of commerce conduct administrative reviews of one hundred twenty one type companies now it came to the court and is complaining that it individually reviewed four companies and it should the only review two out of the hundred twenty one companies that ad hoc requested commerce to review we believe as we noted in our brief that they feel that exhausts administrative remedies on the respondent selection issue  also they had numerous opportunities before the department of commerce made its decision the initial decision at a six forty three to rely upon for the four largest companies there was a whole schedule for no it would have been futile in fact there isn't the case brief regulation says that even if you raise something before you shall raise it in your case brief and that they're put even more importantly department of commerce will address strict limited well exactly of course tall notes how limited the futility exception is that still if there could be a fact pattern that falls into it yes there are there are cases where the court has found that it exists in this case is a monday night calculational issue where the department of commerce could have used only two respondents data in as a hoc is now requesting instead of four it could have just not used time is entire unions doubt but it elected not to would continue to do what it did in the preliminary results because nobody raised the issue in their case brief if you look at department of commerce final determinations you'll see in their decision memo there's issue number one issue number two issue number three in these are each issues that are raised by interested parties in their case briefs and the department of commerce here separate well as as we noted below before the part of commerce issued its aug seventeenth letter it actually came out with the schedule for comments  and the parties interested parties all filed comments on respondent selection and filed response response of comments on selection and if you look at ad hoc comments at page eight three forty eight eight three fifty six and then follow responsive comments if you look at page three sixty six and in those comments non responsive comments ad hoc advocated only exclusively for the use of a sampling methodology who was one of the extra two respondents if you want to put in an ad hoc spew up tight mate asked commerce to use no fewer than four respondents in its comments at the same time that  was commenting and if you look at a three seventy eight commerce discussed may's request to use for but ad hoc never responded to that request so they had the opportunity even before commerce issued its determination its respon memorandum so that was the first chance that ad hoc had to exhaust an explicit administrative rennet and then after the congress made its response election determination as the trial court noted  that's correct but they could have objected to tidy may's request before this date when the parties when there was actually a schedule for comments in response of comments that were ad hoc had an opportunity local for administrative convenience for the agency it would be chaos if the agency sets a schedule for parties to file comments and a final response of comments and then reaches a decision stay the course but congress never called it a final determination and if you look at the statute and the regulations commerce the final determination the final result is a  statutory term under one thousand u s c six hundred seventy five were the commerce issues final results of an administrative review and so when commerce is final it as you noted earlier it means final and there's a basis for the use of that where they raised that issue was in their un's unsolicited post decisional comments the letters that they filed of commerce after commerce made its respondents alexion so mean there's on the record below the ad hoc made these arguments to commerce they did not make these arguments when they were explicitly given the opportunity to do so either by commerce it nippon steel case is the case that that is a case that establishes the standards for the application of adverse facts available a case of course is that there is an object to test in a subjective test for applying a the object of test is simply that there has to be a known obligation and secondly the subjective test requires finding that the a match in an effort to respond was not made and this is an area which is squarely within the commerce departments expertise trying to evaluate what we say is a very complicated factual situation and here there is no evidence of tying ins and intent to withhold information or disregard a known reporting obligation the agency itself issued what it claimed were confusing instructions i think that's a mild characterization but in any  would rest on the fact that there simply is no evidence to support either a finding the sad affair of the object a test or the subject between the government's position that we were quire to raise all these issues at a set time during the proceeding and that everything that we filed thereafter was post decision but there had been a decision made on that we're not to revisit what we're looking at that in future administrative reviews is compartmentalize pieces where we have to raise issues early on legal is fully out in order to have them consider it and if we left it to the case brief we would be told that we had not raised them early enough in the proceeding because there is a separate requirement of when you have to raise arguments during the proceeding with respect to particular issues of which the parties are not clear about venturing into the into the proceed thank you very much thank you