in order to satisfy this legal obligation to commerce has adopted certain surrogate value criteria in which they use to view and vet the available surrogate values among these criteria are whether the circuit value is contemporaneous with the peel or whether it is broad based and whether it's specific to the input that is being valued it does strike me as a little unusual armors would introduce that study into the record and request comments and then say well what we don't have enough time to consider so i understand that part of your argument the flip side as i understand is that well yeah we introduced it we learned of it we introduced it we asked for comments when we realized that there were objections and requirement under the statute to use the best available information now is there a requirement that they get this done by these deadlines or would they have taken another two or three weeks if they want that certain they operate under a statutory deadline however i would submit your honor that congress was fully aware of its own statutory deadline when the agency itself placed the f a o study on the record moreover after rejecting it in this case congress mean the unprecedented statement that they found f a o study so worthy that the f b i study as they said better satisfy their circuit value criteria and most significantly in making that decision in the new shipper review a mere three months later commers it did not go beyond the four corners of this thirty four page report because clearly within those thirty four pages was all the information the commerce needed to know that this surrogate value source better satisfied its value criteria since it was far more broad based it was far more contemporaneous to the peel war and there was clear indications that f b o and widely respected agency had taken precautions to make sure that the information was accurate they stated that they use cross checking of the information that they use trained interviewers in order to confirm that this information was correct now most significantly longer our view is if this is the only concern which the agency hats with the  study is that it felt it did not have time on europe its ministre to a deadline then we submit that the proper recourse at this point is for this court to remain in this issue to commerce so that it does have  it that if they did discovered this study but decided that there wasn't enough time they discovered that very late in process that others and and there wasn't enough time to relieve that it adequately and therefore they didn't for that reason the record there would be no argument that that was an abuse of discretion correct well your honor it's the we are confined by the record but that is a very important point is that there is absolutely no dispute or argument that the f b o study is properly  don't i i would have to agree roger that it would not be a piece of record evidence which would be under under discussion so so the question is really should this situation be very different if for example they decided well you know if we're not sure whether this is reliable but let's go hit put it in the record no one objects to it we can use that if there's any objection we'll just say we're we don't have time to work it through and we won't we won't consider any problem that well absolutely your honor because that these these proceedings is as this court well knows our adversarial nature so in essence somebody is always going to have a problem with a piece of information there is there is no such thing as a surrogate value only on maybe somebody has an objection that so frivolous that it's not worth well because with all due respect your honor we believe that the objections that were raised were in fact frivolous because it to this day there has not been any sort of a clear articulation of what specifically the problem was with this thirty four page report and why it is that additional time was necessary since it very clearly spelled out all the relevant information with respect to the circuit value criteria the commerce itself adopts commerce could commerce have withdrawn the report that they have submitted as we did requested comments as it's too complicated and remove it from there because they your are that raises some interesting legal questions i'm not certain what their legal authority would be to remove it from the record without cause but  again with respect i would say that that's not the situation we face here it is undisputed that this is on the record and we believe that given that this is a nearly thirty four page report and that it clearly states the relevant criteria that congress is supposed to look to when determining the best available information that there is simply no reason for it to say we have insufficient time and this was confirmed by their very own final determination and their three months later using nothing more than the absolutely your honor with which with respect to the rejection of the zero six zero seven i got you had a financial we believe that this was also an error as this court well knows congress is required to have a rational connection between the facts found in the choices that it makes however the reasons it gave for rejecting the zero six zero seven financial statement have absolutely no connection to one piece of information which was necessary within the zero six zero seven report that being the value for whole fish there the widely cited directors report in the zero six zero seven financial state forgot yatta talks about financial concerns with respect to cash flow problems and their inability to obtain future financ and were none of this relates to the sale price from commercial invoices which are reflected for whole fish in the company's audited financial statements as we noted in the brief the only part of that financial statement which relates specifically what directly to the price in the in the commercial invoices is the statement in the notes that says revenue comports with i a s rule eighteen and one of the requirements there is that amounts of r fixed at fair value thus if there is anything on the record or within that financial report that is indicative of whether this is a market price it would be that statement in short there is there is simply no information on the record which connects these financial difficulties to a conclusion that this price is anything other then a clear representation of the current market value for whole fish and notably the court of international trade in an earlier proceeding we considered this exact same two thousand and six two thousand and seven financial state reached the same conclusion and stated that quote whether or not the company made an overall profit the rest and quantity of sales of fish or market prices and quantities reflected in the audited financial statement there there is simply no additional information on the record in this proceeding which would lead to a contrary result and a greater concern to us is the fact that having rejected the zero six zero seven financial statement for these reasons commerce then used a price from the two thousand two thousand and one financial statement which as we noted the directors report shares these identical concerns of inability to get cash flow and the desperate financial situation of the company so we've therefore respectfully submit that it is arbitrary and improper for commerce to use these financial concerns as the reason for rejecting the former contemporaneous six of seven financial statement and resorting to this two thousand two thousand and one statement where it reflects the exact same financial terms concerns that have been used to reject the better source let's hear from the government  that study in the record in the first place congress at at during the during the review noted that there was no perfect price that could find and so therefore using its independent responsibility search for information record now and found admittedly found information on the record at very late date but at that point had not had a chance to bet it did not necessarily put on the record because it knew it was reliable but that it could possibly serve as a surrogate value but it did put it in the record correct it did ask for comments correct received comments and then  the responses to the report and determined that it in any sort of circumstance it couldn't into be are independently determined it was reliable has that responsibility for every piece of evidence that it relies upon in order itself noted that procedurally it could not provide the sort of vetting process that it could in that circumstance given the short amount of time but it was limited by the do you think commerce would have been written would have regarded as a sufficient basis for lying on the evidence that they did put in the record even at that late date that they didn't find either from the responses or otherwise i mean in the other words what they presumably put in the record is managed thinking that it was possible that they would line c what was it that persuaded them that that was not possible commerce noted and this was a brought up by the petitioners noted several several problems that the report itself noted first of all being the fact that there was a question as to documentation the the interviewees were asked for their best estimates as to what they sold their hands for it wasn't clear at the time period in fact commerce mentioned that as well wasn't authorities there were problems mentioned specifically in the report that commerce needed an opportunity to look through and determine whether it was appropriate to rely on the surrogate value as a reliable in the determination it was made a few months later to rely on that report with those problems worked out it does commerce and i guess it would be in a memo in decision was that discuss those problems and was it completed at that point that those were not insuperable problems correct your honor at that commerce subsequently found that it was it could be considered a reliable piece of information but of course they had three extra months to look at that data and determine whether it was those problems took away from the reliability and i haven't read the later document what i'm really isn't for is they did they address in particular what it was that may have given them qualms initially but did the ultimately say well now  at the study at that point because the report itself could conceivably even though they had these problems that the report could serve as a reliable or a get value given the  study and itself but was there any indication that any of their these conclusions were rates reached based on new information or further review during that three month period they  student correct but the data from the following day that data from two thousand and three to two thousand and four from that actually how to statements were can every party on in the proceedings determine those records are those said numbers to be unreliable and for congress to be required to consider evidence that the parties themselves determined to be unreliable is it there is no requirement that congress would do such a thing the congress is required to rely on reliable evidence and to two  congress is required to do its own reliability reliability germination couldn't rely on information that it had not been to be reliable if some independent overarching responsibility for the agency  circumstances of this case where the study was was introduced in the record in the congress came to the conclusion that it couldn't be that it was in the time correct but that commerce very shortly thereafter co detox two thousand and two to three forty nine point seven two thousand and three to four forty eight the next year fifty five forty five forty two and two thousand and seven f on that background congress chose the sixty eight figure of two thousand and two thousand and one well there are according to what we've been told none of these other think is has been challenged is incorrect if congress is required to use the best available data i'm trying to understand how that result can be justified with all deference to the agency charged with  upon it conceivably it would be considered and reliable that unreliability seems to have some kind of loaded term but in this circumstance congress could not rely upon the f a a record would not have the adequate opportunity to determine it was rude to determine it was reliable had this responsibility there for if not rely on the f a a report to show that pricing trend i'm a little confused now i'm afraid and straighten me out oh i thought the f a a report commerce determined to be unreliable  lining up prices to determine whether prices actually line up with each other and it's not necessarily just a math error and so in this case the question of whether there was double counting going was on reliable they simply did not rely upon it and as your honor stated there is a significant difference there moreover there is additional record evidence on other fish prices which commerce is not considered while they did state that some of the earlier g hotta financial statements were not remodel the record as the chart your honor it was quoting from also shows that on record was the two thousand and four study from the agricultural development bank we have a two thousand and seven f a o study and we also have a two thousand and seven price quote from a company called bangladesh catfish limited these prices again confirm the very steady and consistent decline in the price of whole fish from the two thousand two thousand one period to the p o r and commerce has wholly disregarded this record evidence in choosing not only the oldest but the highest surrogate value on the right for fish and then to add insult to injury it took this price of sixty eight tacos and then inflated an additional forty four percent to a price of almost ninety eight tacos per kilo because it has a general presumption that older values must be inflated to be contemporaneous p o or period under a general presumption that all prices increase over time well this general presumption cannot be made in disregard of  basic record evidence which it's clear that in this case for this one input the price is not rising the price is not in fact even remaining steady at a price is declining and prior cases where the record has shown that an individual case we believe the record the record is abundantly clear that there was absolutely no rational basis for commerce to be using a w p i based inflator and inflating this list and highest surrogate value an additional forty four percent to now reaching price which is more than double what the contemporaneous values for hold fish simply because it has a general presumption which it's using in disregard of record evidence within this proceeding  as as your honor judge newman stated again it did this of the fundamental issue here is commerce's obligation under the statute to use the best available information and best as as we've stated never bring is clearly a term of comparison congress cannot just simply set aside one of the most significant surrogate values on the record and look at a subset of what is available and say we have selected this one therefore we find it's the best and as the court of international trade stated the union camp to do so under under any situation means that whatever their selection asserted value is is not supported by substantial record evidence since they have failed to consider the record as a whole while we agree that congress is under statutory time limits again we believe that the proper recourse in this situation then is for this issue at least with respect to the use of the f me normally we're looking at ten twenty thirty percent and dumped it which obviously have a big impact on everything but one half of one percent is very low is there something else other than the monetary amount they're du to their going on here there is absolutely your honor to the extent that you can tell me what i can totally very simply under under congress's regulations a company may be excluded from antidumping duty case permanently