a f a rate in a hundred million dollars in duties on color as all explained this case that's before you now it's fundamentally different in the least two way nonetheless despite those significant differences koehler treated the t two cases the same and impose the same a f a rate total a f a and another eighty million dollars and duties on color now there are two fundamental critical ways in which this case differs from the a r three case the first way in which they differ is that in the case at hand there are only five omitted home market sales out of the total eleven hundred in the home market database now is your honour's may know in calculating margins converse comparison individual u s sales to a monthly average of home market sales and so because the earliest such sale occurred in september twenty eighth two thousand and ten the first ten months of the home market database were in no way affected by the omission of market sales  eleven and eighty six twenty three of the joint appendix we have there you are offering on the rim and to establish that there was a calculation error with respect to that correct strike zone and i guess you don't have the figures purportedly showing this cancellation here and i think it eighty six forty three and eighty six forty four this is the  improper duplication of the of the discount yes it was it was the one thousand eight hundred thirty five was supposedly computed twice or three times instead just once right so your honor there was a total of three thousand that should have been spread across the three different light items and what color did is applied the entire amount to the first line item and because of that in this is on the u s sales because the entire discount was applied to one single roll basically paper it had a ridiculously low price and therefore  huge margin compared to all the other margins one of them you need should have been just a thousand and eighty eight thirty five for each of three correct instead the full three thousand was applied to the first one and but to the other in the first time in this in a or two are you referring to and they are the only review is used in error three but here is a very important difference in a our three color did not submit any evidence to commerce showing that that transaction was result reopening of the record koehler submitted this information that we were just discussing and so we believe that it was an abuse of congress discretion to refuse to consider evidence showing that it was a mathematical error and i want to emphasize that when this was submitted this information about the mathematical error was not being submitted in order to correct the omission of the home market sales this had nothing to do with that omission of home market sales or the third country sales in the first place this is simply a mathematical error the caller was trying to bring to commerce attention  that includes two documents that make this point the first is colors per supplemental questionnaire response from a or three which stated on page two in this committee found at page eighty one eleven that the earliest such event took place on september twenty and ten the second one can be found appendix page eighty one thirty and that's the july nineteenth two thousand and twelve letter to commerce on page two but no one states that there are five line items so made from the home market database importantly commerce in it determination on remand not only cited in relied on these two documents but in fact relied on the very passages that i was just referring to and the only basis that commerce had for concluding that koehler omitted home market sales during a period of review to an all with you mission by the admission by kohler that that occurred and as part of that admission it koehler stated that the first such sale was on october twenty eighth two thousand and ten and so it is i'm sorry september twenty eighth two thousand and ten and so it's that very statement saying that the first such omitted home market sale curve on september twenty eighth that commerce relies upon in concluding that there were omitted home market sales during the period  to commerce cherry picks that and and only relies on and finds that there were omitted whole market sales during periods you too but ignores the fact that the first such sale was on september twenty eighth and importantly the allegation in a disclose that as a result of its independent internal investigation it found that five such sales occurred at the tail end of period a review to no documentary information these are just self serving statements from counsel right no not at all your honor these are just like any other information that it's common for allies on just like it's any of the questionnaire responses or databases they were submitted by counsel but they were certified by an officer of the corporation in this case the chief financial officer five sales and the exact statistics for the things like price and quantity for those sales converts refused to allow them to submit that and so having refused to allow them to submit that then they point to the fact occurred on september twenty eighth so what call what congress did is they just cherry picked that and instead of saying the first sale occurred on september twenty eighth they just say color admits that there were sales during theory review too but we're not going believe anything that they  say and we're going to throw out all of their data and that makes no sense because they're basically saying you know colors lines so we can't trust anything they're saying so we're just going to throw out everything and we're not going to give any weight to their statement that the first sale occurred on september twenty eighth but if you think about it there would be no reason for kohler if you were going to try to lie about this indices commerce there was no reason for color to disclose in the first place that there were sales during period or v two that were omitted because there was not even an allegation to that effect so it makes no sense for commerce to simply cherry pick certain parts of the admission and ignore the other parts and the fact is there's no evidence on the record that in any way calls into question the first ten months of the home market database which were separately each one of those months is a separate calculation there's nothing about an omission of home market sales beginning on september twenty eighth that in any way affects the first ten months of the home market database and so this is why this case is entirely different from administrative you rate the the first ten months of the home market database which were timely submitted and there are no errors in that that was timely submitted verifiable there's no reason why commerce can't rely on that so there is a series of cases saying that congress can only use a f a to fill gaps in the record so jayson did on from this court would be an example of that that case also favorably cited the c i ts decision in gerber foods that was a case where there was misleading intentionally misleading false information regarding whether a certain company was an importer of record and so there were even falsified documents submitted and what commerce had to do there was apply f a only to those sales that went through our allegedly went through that importer the rest of the sales that were unaffected by the false statements still had to be relied upon by commerce and we're saying the same thing as we've been hearing that you would say i would love your honor thank you very much court the issues in this case are extremely similar to the issues that this court has already ruled upon in the third review case in particular addressing the total a f a issue the issue that plants council is talking about or towards the end of his argument one thing that each of the three courts that has already reviewed these issues and ruled on them the two trial court decisions in this court's decision the third of your case all of them have come to the conclusion that the that's not correct i mean the d level for example of the false statements by color in this review was even more extensive because for example koehler falsely certified that's important because we talk about circadian color falsely certified in this review by my count at least six different questionnaire responses and supplemental questionnaires one says i want but one the one that is particularly of note is a series of documents from pages seventy two two of the record to seventy two thirteen to fourteen of the record that is where in the underlying view abseil on actually suggested that there was fraud going on where color was not reporting all of its sales in germany during this review period and koehler you know in addition to falsely on an on repeated occasions falsely certifying that or to report all sales in this case said no there's not a fraud going on and certified that that's at seventeen thirteen fourteen proceeding from fraud so each of the courts and this court for example of pages thirteen seventy nine to eighty of its decision in the to review case determined that when you have a situation of fraud like this one commerce may reasonably determine that it's not a matter of the numerical value of the fraud but that the respondents credibility may be me that the record does not reflect when this calculation error relating to one hundred forty four percent of specific transactions specific margin was discovered is you do agree is nothing in the record reflecting that when koehler learned about that no i agree that color has never said when it learned and one important aspect of that is that this was long after the review point seven five point three six petition rate that was applied to the total affably correct right which at which as this court noted in the thirty two cases quite a bit lower than then than that it's about half a hundred forty four percent rate that was used for much closer to the other high margin transactions now where we don't know a little bit since we're talking about corroboration under that section of the statutes and i can't cite but you know what i think one is it's a little bit of a different situation here in that alright koehler had acted improperly had to disclose these transactions yet we're now sort of the different arena they should have the chance at least to address the corroboration and that's why they came forward with this report evidence of a miscalculation i think i can address that question on first of all something that this court ruled in the third review case as well as its previous decision and then yup was that congress is not required to corroborate zero six two of the record for congress and look if you want if you want to submit information which color did it submitted information well our rates and other reviews were not this high it could have submitted even more you know extensive information about  costs there's committed fraud and we have to cleanse the fraud from the proceeding we are not going to let you go back and try to revise your sales data for the review that specifically will accept information on a f n proper ation but we will not accept information with two different administrative reviews but the exact same data in fact the data that was used in a are three were koehler's reported sales n a r two so it's more even more contemporaneous here to your honor's point to forty five get to seventy something well fifty sure really much closer to seventy there's a seventy five percent rate which congress didn't choose one hundred forty four percent rate it shows a seventy five percent rate it's a heck of a lot closer to fifty you case you know not only were there other high margin transactions one in fifty percent one at thirty percent eighteen others between twenty and thirty percent but this was in a world where polar had concealed a made specific findings that we don't ultimately know just scope of how many sales the caller concealed and congressman specific findings that because of the fraud there may be further misrepresentations that we are not here congress recognizing the something that this court has recognized as well there was a limited amount of data because the only respond in the proceeding had had committed fraud there are several related points here first commerce commerce understood that the sales that would have created the highest margin transactions were the ones that color concealed by definition of the prods came second it did include a built in increase for deterrence and commerce said and even koehler kind of admitted that ne a favorite is supposed to include a built in increase for deterrence in addition you have a situation where where congress head has has said in this court has recognize only sales out of that anyone put on the record of this proceeding is koehler's second review cells that from this proceeding congress use that statutorily authorized normal f a a practice and said look of you given the data on the subsection the deterrence requirement for operation requirement to the extent those are intention congress itself has indicated by using that to the extent practical language and also by indicating in the f a a that to the extent that compare it to the other it said look we looked at the range of their transactions and this was good enough for them that's one thing we accept one point four well even without the one forty four it's it's it's there are still other transactions and with the built in increase for the one thing i'll add on that this is important congress made general findings several places but the most particular are pages eighty nine fifty one to fifty two of the record as well eighty nine fifty six of the record that not only  polish fraud undermine the credibility of its submissions prior to during the actual review because this review was close but also to undermine the credibility of callers who stream and submissions these self serving submissions court to the record appendix document seventy two a five to seventy two a six we actually allege during the underlying a or two proceeding based on their reported sales data that this exact transshipment scheme had been occurring and not only that it had been occurring but  it it had been occurring throughout the period of review and in fact as judge stance you pointed out in his decision at appendix page sixteen we only had circumstantial evidence at the time we couldn't prove that they denied it but we had a  but in this case again this is the second review we had alleged throughout the period they have been concealing the sales later on that made the self serving assertion that in fact it was only five sales were it towards the end but that was you know it's indisputable and we certainly don't accept their representations that was a very self serving representation as mr rowan just pointed out congress found it not to be credible and again the same thing with the information that they provided with respect to the sale with a one hundred four they provided that the congress congress found it not to be credible they rejected say that you know if you look if you if you lie to us with respect to one aspect of your response it's reasonable for us to find the entire response not to be reliable or credible and that's certainly what congress found here and the text and again as mr quinn said that extends not just to their underlying data but to some of the representations that they made in redetermination again they did rely on some admissions against interest the caller had made but that doesn't necessarily mean that the self serving statements that caller made necessarily had to be credited and congress did not  yes your honor the apple has tried to continue to pound a square peg into a round hole by trying to fit this case into the air three precedents in this case there was evidence submitted to congress with one hundred forty four point six three percent transaction was a result of mathematical error we're not suggesting that the corroborating rate has to be corroborated itself but when there's evidence that it's a mathematical error commerce abuses its discretion if it were fused to even consider that evidence  big difference between an allegation that a number is aberrational on its face which we continue to believe this one was and judge can see from that was there's a bigger three aberration on its face and the result of a mathematical error that can be demonstrated with evidence that we attempted to submit so those are two very different situation here if the hundred forty four point six three percent transaction is taken out we're not aware of any case in which commerce is used in a f a rate that wasn't corroborated by at least one transaction at or above that a f a right now here the highest margin ever calculator for color was six point five percent from the original investigation you can't possibly say that that using seventy five point three six percent  but you're saying well i wouldn't necessarily agree that the aberrational on its face in question would bind you but it doesn't matter here because here it's an entirely different argument here is not that it's aberration on its face argument is that the result of a mathematical error and commerce abused