i was before as to two cases being submitted later today on the beach but that oral argument those are appeal thirty one ninety two from two thousand and eight mazed versus merit system protection boards and appeals thirty three sixteen from two courthouse drawn that line in the past so for example in the alltech is which was decided by the end affirmed by the fourth quarter national trait looked at a decision by the international trade commission and decided that the commission simply had not addressed the party merely rephrased we have a lot of case law that says if the record is adequate to support the determination that ordinarily we should affirm even if the opinion is  record looks ample then according to my sense of the case law in that circumstance we should affirm why why is this not such a case because the evidence in this case is not ample to support the statement made by the to provide information as to weight and value which then uses to analyze and that's critical because the statute requires a department look at volume but it does not tell the department measure the department must use to figure out what value is it could be weight in some instances but perhaps that might be your purpose now let me let me ask you what is what is your complaint your concern with respect to the to the volume just looking at the volume side of the equation our concern is the following  is that the volume decreased substantially as to both weight and value with respect to value that does not occur the average value of poster imports increased by an average of twenty five percent with respect to weight it only decreased by an average ten percent  remain intact but help me understand what you're really saying here it sounds to me like you might be saying that under some uncited case law a change a percentage be substantial particularly in light of the fact that the value increase and did not decline as a servant had indicated that the department used the word are you suggesting that ten percent is some kind of magic line in the sand explain for a moment i don't quite understand what the problem is other than you don't think ten percent is substantial the problem and then you admit that that's kind of a matter of a judgement call or a matter of opinion all sorts of people might disagree maybe i would think it to be twenty percent then char would think it should be five percent of what can be called substantial but isn't that a sort of close call weighing decision that arguably is best left to the  where interested party has pointed out that there is another way to look at the evidence to demonstrate that the cry identified by the permit really is not substantial and perhaps it's better tribute to market after such as that recession are just whatever's going on metrics have to be given equal weight in the final assessment that would be for the department to decide so if one factor could be given ninety percent weight and the other factor only ten percent where you might the results saw a lot of case law thing that we really have some obligation as a reviewing court to apply logic and to look at the record and to assess the evidence in light of what the co separate section that has to do with the margin likely to prevail if the department makes the statement that subject imports remained at a steady level during that review period the department nowhere explains how much of import the same subject imports could both decrease issue review the commerce department has to determine the likelihood of continued dumping should an order be revoked that determination is affirmative that must estimate the bank into the margin of doubling that each respondent company that's being examined or review when there was no dumping would replace under certain out of the ordinary circumstances the department may select a more recent origin of the most more accurate measure of likely dumping in this case congress select the more recent explanation from prior agency practices by failing to compare each respondent's post or import volumes with their preordered import volumes and by examining each respondent share of total exports from japan rather than their share of apparent u s consumption of  page one eighty eight it's hard for me to look at that and appreciate that that shows that both of them are staying the same two or three at least you can't even argue from one a b stay the same or increase seems to make i also appreciate your eight isn't even a proper measure for the purposes because it's only looking at percentage of japanese imports into the us well if as a result of this dumping water or originally selling a million a year pre changing the margin we've already decided margin must still exist why you say they should be looking at preorder and post quarter numbers rather than orders or the numbers over the life of the order itself point i certainly understand but the overall point of whether or not the margin ought to exist at all congress votes to free a post or not but i don't understand why turning march to apply when they've decided the margin ought to be this why they should be looking at only the issues in this case and what you presented but their statement has always been consistent on this point that they look at them over the life of the order actually but to disagree with that you're on a recycle number of cases beginning  reasonable to me to do it that way so why i don't refer something that it seems like even if i agree with you on the evidence i'm just trying to say that if i were to craft a remand order for example what would i tell congress to look at i'm not sure that i feel that preorders sales levels the department will provide the i t c with the rate from the original investigation and that's from honey from argentina china and a similar language appeared in one review after review after review including in direct commerce to compare pretty impose order of importance with it does say is that you're normally going to go with the original margin because that reflected what the b shave year i don't think they disagree with you as every second agree that that's what the essay says normally they do and the question is what do we do when the old and but behavior behavior has two aspects to it what level of doping and what level of sales and appropriate for commerce determine what is the appropriate time period to look at it just seems like that is a matter of such discretion but i really am troubled by the notion that because they did in some other case decide it was appropriate to look maybe it wasn't as long a again a pure magnesium congress in response to that argument said we can't use import volumes from your coverage by the order of appropriate for any purpose because what their imports audience were when the order was in effect is not going to be probed about what you're going to do if you remove the order what's provocative is what were they doing when there was no order complex and whether they whether there will be an effort to they're not questioning whether to remove the order here everyone agrees  to get a chance to respond well i will go to the point that if that if that is what commerce thought was appropriate to do it have an obligation to explain that in this review contrary to decided to convert discretion over what period they're going to you would still tell me i still have to remain because there still is a question of even if you're just looking over the five year period when that order was in place there still very much a question about whether they decrease which was the year mediately prior to the order and if you look at the volume in those years it has not impart knowledge and does not pertain to those levels during the fifteen years of review in this order and that is the substantial evidence supporting the commerce department germination that there has been a  important it's over the five year of life of the order are in that staying the same or going up is the only things you point to seem to me to go the opposite way j one eight for example is a source of  so we've been at one of the companies was deficient in providing the numbers with the best approach be to use the numbers that represent the scope of the actual order for the two companies that provided it and it shows some variability from eight point nine percent down it was some fluctuation but it if you exclude the first year it was relatively operating within a relatively stable band that we seem to be having some difficulty discerning how congress got to where i understand the question your honor i still would argue that it's reasonably discernible through the  specific producer information at ages and exchanges one ninety one through one ninety seven and they prove in your view they show under the commerce department interpretation of the statistics that they remain all i can point to is that the the evidence the commerce department relied upon which is the final determination here defending the view that the fluctuation in those numbers important for the finding that they were you know that's correct your honor however i mean it's it's like the surname the trend in movement in the stock market there is some element of just pressure in the interpretation of the numbers ever the numbers just jump up and down b there may very well be an answer here but it doesn't seem either you or any of us have in terms of how commerce got to the conclusion reached  year when the numbers don't add up the government ought to take a reasonable position and send it back and have commerce otherwise you just waste everybody's time a waste everybody's money that excludes the tax payers trying to defend what effect total japanese apparent consumption of oil barons in the us was sixteen point five percent by value it didn't approach that in fact for most of the period subsequent during the during the sense of review period it was about half that so that o value basis you look at it by market share the the cars apartment found was also supported by the record all right thank all three council i feel under