respect to certain home market sales we submit that commerce and determination to limit the post sale price adjustment claimed by boris island was in accordance with law and supported by substantial record evidence  known to the customer and or established and in other places says none of the customer or staff so my question is you agree that it is not necessary that it be known to the customer the original decision here read and counsel nor is it the way the federal register which is what adopted this rule reads either at the federal register at fifteen  commerce expressly says when it lists the factors the department may consider it says whether the terms and condition of the adjustment were established and or are known to the customer at the time of sale and whether this can be demonstrated through documentation so i guess i share the same question judge dyke is asking you which is why isn't it clear from all of these articulations that commerce is  commerce looked at this to see either whether it's been established in advance through documentation or known to the customer in advance or possibly both but but why isn't just having the allocation be established in advance through documentation be sufficient the owner again for commerce the key question has been and always has been whether the terms and conditions of a price adjustment  decision that you're saying should have been accepted by the c i three where in that decision which begins on five thousand and fifty four i think where they say that it must be but as i read the council that exact same page five thousand and seventy one when commerce is citing what its own law is which it has indented and quoted from on the page say and or so you may be right that it one place in this conversation they say and so that's because they're talking about this case but when they quote the objective law that they are to look to they actually quote their own statement and flash for going on so when it was a combination of very late timing of the queen the justman and shifting contradictory explanations of the adjustment well were signs that you could never have an adjustment  t depended on what happened during performance that if there were you know there's a is a provision for a breach a parisian for adjustment if there's a breach during the performance that could never be a qualifying adjustment adjustment they just didn't grant it in the amount that it worked on such granted on my counsel i think that's one of your problems one of your problems is the secretary found that a price adjustment was in fact warranted and your argument the argument you're making to judge day would support a contrary conclusion what it not isn't that what your argument would be if your argument is if the amount is not certain in advance you can't get final price adjustment but here commerce concluded otherwise well your honor i'm not saying certain in advance but i'm saying and established program where that's where the respondent doesn't have the freedom to decide the ultimate amount of of the penalty was legitimate or posed potential for manipulation and so again that that is the critical point here is clear from this investigation that bore a son was was dumping in the u s market was  some less than it sold for the same the same products in turkey but as it turns out they were late delivering the products in the home market should they really escape dumping liability here permanently merely because there were late deliveries of their products in the ok ms mendoza thank you your honor i would just like to point out a few key problems most of which have been discussed already but st of all i think that there's no question based on the petition of a appellant statement of its case on page two at the opening brief that in fact the issue before this court is whether or not both requirements are required in other words that the  something with respect to the joint venture agreement and the terms that are in and in fact there is no such discussion i would also point out when you're reviewing the final role do you agree that in fact the full agreement was not available to the customers of the the full joint venture agreement was not available to customers in advance there was there is no evidence on the record that the joint venture agreement was think just going back for a minute though to the final rule i think one thing that's important to note whenever contention or so i'm sorry i keep saying petitioner appellant whenever appellant cites to the final rule they make it a pages of the final rule are discussing the policy that existed or was proposed i'm sorry the policy that was originally proposed to define a rule that was originally proposed in which they thought common when they turn to the question of what the final rule is then going to be however they specifically say in the published in the in the proposed modification they use the phrase as stablished and or known and what they say they're specifically is that they are establishing a broader rule with respect to the to the requirements concerning a post al adjustment i mean postal adjustment and then the five factor test with the and or language follows in other words if you look at the st two pages of the final rule it would suggest they're kind of discussing what they had originally considered and the comments that they had received and then what they do is based on all those comments then they proceed to say ok what what now will be this final rule and so they not only modify the language of the regulations but they also set out this five factor test the st test being whether in the actual decision of commerce what you will find is that five factor tests that you were just reviewing with them cite to the subsequent pages whereas when petitions one appellant states that it's an column yeah ok it's does sense in acting these regulations the department has consistently applied and then they talk about or not establish unknown to the customer and that's ok so they're reviewing their what was there the history of the post bail adjustment have been with us but counsel this is so much more i understand one of the arguments to be made  can you try not to because it's very very distracting across extremely loudly ok so one of the issues is the department says it can consider any one or combination of these factors it really has complete discretion to make the determination on a case by case basis because as the regulation itself says it has to be to the satisfaction of the secretary so in this case where the customer believed  should be assessed one rd one rd one rd and when that was based at least in part on or not where the customer's belief wasn't necessarily based but where boris didn't actually responded to a commerce investigative inquiry with the statement that suggested that customer in four days invoicing each one rd was appropriate and what they were going to pay isn't that substantial evidence that would support commerce is original just to clarify the record for a moment board never stated or reported that it was paying one rd of the penalty to the commerce department what gore's time did in fact was to report the original the original demand for penalty payments from the customer which as you'll see from the record counsel that's your interpretation but this is a question of fact and i papers i'm sorry to reflect it says contortion members for this amount divided equally between the companies to reflect the signatory percentages in the march twenty because this statement was merely stating that the invoices for the penalty had been sent to each of the three consortium members up that's also correct your honor it did reflect the signatory percentages but and i don't just agree with either of those but what we were what we said to commerce and what our argument was before the court below and here is that those were merely a convenience of the agreement this agreement this sales contract provided for joint and several liability there was no way that simply sending a rd in a rd in the rd to each of the consortium members would have been any way undermine the joint and several liability of the agreement of the sales contract i mean the customer could send each of them a rd of the penalty but the facts are clear that in the event that any of the party didn't pay all the other parties would have to do so this is sort of one dollar of those course in dealing type situations where the customer does something for the convenience and just to reflect what's in the what's in the agreement in terms of the parties that are listed but it doesn't undermine the the essential nature of the sales contract itself which was which provided very explicitly for joining several live billeted so what you're saying is it reflected it was consistent with the summary but it wasn't consistent with the actual agree corrector on r s a was yes it was it was simply methodology for sending invoices and i don't think it really had any significance other than that it's surely was based on the signatory percentages but it it wasn't and anyone in any way shape or form indicating that the thirty yeah i think that one of the one of the things that you know i wanted to just raise because i'm so sorry is that because the because the penalty itself was being discussed among between i'm sorry between the consortium and the customer that it is correct  say that the final terms of the penalty itself which congress granted were being discussed and determined after this case was filed even though everything else everything in terms of the performance of the contract agreement everything had been fixed prior to that it is true that after that the the consortium with the customer under the sales contract determined that they were also contingent  liable and therefore reduce the amount of the penalty it is not correct to say is as appellant do that the consortium was negotiating the penalty in fact there's absolutely no evidence on the record of this at all and commerce never reach that decision or suggested that they believe that decision in fact in the verification report they very explicitly explained that it was only set one it was set once the established and that the distribution was done in accordance with the penalty excel files that the client had provided that the customer had provided to them for determining the penalty and they simply went through it is on the verification report and determined what portion of that penalty was attributable to each of the parties that were delayed thank you ron ok thank you the department signs that the kolar earlier court case which hinders the department's ability to address after the fact rebates which present the potential for manipulation of dumping margins mean that's the whole purpose of the modification is potential for manipulation of dumping margins and that is exactly why congress wanted to expand its its power in its discretion and that's the discretion that the lower court ignored so when you then was decide they never they they didn't ignore the joint venture agreement but they they focused on the agreement where the customer was a party and that was the sales agreement so it's undisputed that the customer wasn't a signatory to the joint venture agreement or that with documentation provided to the customer didn't didn't reflect the relevant terms of about agreements so even if the joint venture agreement contains terms allowing the consortium to reallocate penalties the terms were not established enough to permit consistent or transparent disclosure about this particular adjustment so there's no doubt what the customer understood here and that's that's reflected in the fact that they build this amount one rd one rd one rd of the various parts that's the customer's understanding in commerce found that was a reasonable basis for our stating the poso price adjustment particularly because of of all the distortion that occurred occurred in the reporting during the case of this the course of this case the shifting explanations that gave about the amount of the price adjustment when they st when the price adjustment they said they had already agreed to pay their customer that amount then later they conceded that they hadn't actually made any payment and that they had just reached him agreement to determine the final penalty amount and then bore us and also stated that the the penalty had been incurred by a consortium of three members who would be bil unfortunately this dumping duty goes away entirely because of this adjustment that occurred and the amount of the adjustment which shifted while the investigation was going on that's why we think commerce appropriately limited t