those and and a j disclosed the material terms of that relationship well before the policeman or a determination and based on the information that they had provided commerce had already determined that dose and not ha with the export or for and fifteen and and what the what commerce said at that time is dosen is the export of for sales originally attributed to a j specifically we preliminary find that dosen is responsible for negotiating and setting the terms of sale and directing the activity of a j with regard to subject merchandise that is from july of two thousand and fifteen before commerce ever doorway to the proceeding to investigate that relationship  i'd also like to direct the court to page nineteen of the government's brief what you'll see there is that i'm sorry is the certainly of the point you're making with respect to this sentence the government knew early discern from the responses what the relationship was exactly right and then if you look at the government's brief on page nineteen they assert that the actual relationship between dose and and usa is what they say is a far cry from the descriptions that were provided to commerce in their respective questionnaire responses and then they say indeed dosen an  st complete paragraph this is the government's argument that the relationship between ha and dosen was not properly disclosed in the preliminary phase ready of the investigation and the government asserts in the middle of that paragraph indeed dosen ha have since acknowledged that ha played no role in determining the customer of the terms of sale and you'll see that the government sites there to the appendix of pages sixty nine to seventy two and that is indeed the response explaining that ha did not have a role in choosing the customers or terms of cell the problem for the government is that responses from october th team this is a initial response to the government's questionnaire explaining the nature of the relationship between a and dos and it is not some submission from later where there's an acknowledgment of an inconsistency ha in dos and have been one hundred percent consistent and fully disclosing the nature of this relationship well what about not to call for the e s a rather to call for dr sales agreements that were generated in the train of sale for a sample sale that's the wording of the question but i really want to emphasize even  precisely to investigate the relationship between a j and what food and what they determined was that what dose in n h i had said all along was exactly correct there was no difference between the relationship there was no material difference between the relationship that was disclosed that is that dose and and dose in usa were negotiating the sales price ha was receiving a commission on sales that's exactly what j said in the st disclosure the st questionnaire response it's exactly what dose and said in its st questionnaire response there was no difference the statement that there was a material difference between what was disclosed in the preliminary investigation and what was disclosed by the e s a is not supported by substantial evidence let me point you to another example your honor if you look at the government's brief at page eighteen read brief at page eighteen the government points out again the government is trying to justify the statement that it only understood the nature of the relationship after the e s a was received and the government points out again in the middle paragraph it says that in the administrative review dosen had said that it was not privy to the ultimate customers or markets for the subject merchandise sold by resellers and the government points out well but but h l a h a was considered a reseller and so that's that was an accurate the problem with that argument is that ok that's the same submission for march of two thousand and fifteen by dosen and that's exactly where dos and says here's exactly how we arrange sales by dose in usa here's exactly the role that a j plays customer service or sales calls with resellers they said one thing up front and then they said oh well we consider e g a reseller and they they do have information on all of those documents right so that was the example but reseller example is the one that two and that is the same questionnaire response in which dose and makes absolutely one hundred percent explicit the role that a j is playing in the sales that dosen is making through for two reasons one is that in the response to which they're citing this part of the same questionnaire response in which they described how eight sales were made through a j so it was clear from context that when they were talking about resellers they were talking about resellers other than ha that is customers who might have purchased the goods in the united states and then resold them ok so but the nd reason is that have where did you provide where did you provide the you know i don't understand how you square your description of a j with your statement about the resellers and so there was an explained and that's  material information that was lacking or with how it's just not true and then the nd basis that the government relied on below and in fact the primary one below which commerce eams not really want to  is that there was something tainted about the prices on your own r c i'm running very short on time but the what i want to emphasize about the the issue with the prices is there was nothing for once it was correctly determined that dose  a sale from ha to dos in the usa congress was using the right numbers and they've never explained why they weren't using the right numbers remember the purpose of determining the dumping margin is to take the us sales price and compare it to the normal price no one argues nor could they argue that the e s a had any impact on the calculation of the normal value no one argues nor could they argue that the e s a had any impact on the export price or the construction export price indeed no one dollar saying there's anything wrong with the normal value ok and that there is no coherent argument and commerce hasn't offered you one that the cash deposit rate paid by dose in usa has any impact on the export price or the constructed export price and moreover congress can confirm that dosen is entitled to a separate rate the imposition of a one hundred and fifty four percent dumping margin rather than the five percent that was calculated in the you please the court i'd like to pick up on one of the points that we were just talking about whether dos and considered to be a reseller because i think it's instructive as to how confusing this process had actually gotten at the very end of the proceeding admitting that a j is actually its agent who has absolutely no control to do anything but to sell docents products at the price at which dose and arranges prior to sale can you go actually no it's not us we don't set the prices it's the other party so then they send the questionnaire to dos and dos and suggests what is in of confusing way that it negotiates the prices but it negotiates them with a j so then commerce trying to satisfy its deadlines issues that this this preliminary determination essentially saying ok we think what's going on is that dos and is the proper respondent here and so we're going to use their numbers now what i think is missing from the timeline that was articulated by my posing counsel is that after this happened and the parties filed their administrative case race the petitioner alert commerce to the fact that there is a separate proceeding going on or a husband has just been completed a separate proceeding to try to determine what's going on with these two party sales because of course prior to this administrative review dose n had exploited almost all of its sales and a j it didn't really use a j as much and now all of a sudden it's only using a j so commerce and initiate the changed or to try to determine whether a change circumstance review is appropriate that's a totally separate proceeding the petition or alerts commers to the fact that this separate proceeding has gone on and alerts comment commerce to the vast inconsistency is between the statements that dosing is giving in the changed circumstances a review proceeding and the answer is that it's giving in this proceeding and that's really the genesis of the confusion so commerce in its prelim so that your honor is citing to you on page one commerce thinks it knows what's going on but then it it figures out it actually doesn't know what's going on because the answer is that dos and has given in the changed circumstances review are vastly different from the answers that it's getting here so that's why it takes a step back and try and takes more time which is a truly unprecedented thing for commerce to do i've actually never seen commerce do something like defer its final results for this kind of a situation obviously  statutory deadline that covers and hears two religiously this is a really unusual thing for commerce to have done because it determined that there was potential fraud in the proceeding so you're suggesting  why it decided to the to defer the results i think though that the better they're the memo is in the record but i think the better explanation of it is and the final results information after the statutory that line this court has recognized a small number of exceptions when we allow supplementation of an agency record including where evidence was tainted by fraud and calls into question the integrity of the agency's proceedings we have determined that this review is such an exception that's well isn't it also correct that in the supplemental questionnaire congress requested all  documents contracts arrangements and agreements between dos and a j and they were just completely not provided and yes so much later they just kept giving commerce documentation that was expressly asked for that was directly relevant dos and was withholding the agreement because how could it possibly know that there was this kind of agreement until it kept pressing and pressing and then it realized if this truly is a principle even agreement arrangement there probably is some kind of agreement and then later on and after the deferral calmer starts asking more specific questions is there an agreement between you please give it to us but even if the court didn't think that that was enough you here's the way it works and here are the two yeses that are in place ok would we be here today if that had taken place when trying to do is separate out concerns about the nature of the green from the allege actually isn't the proper respondent it's us i think we might have a different case however and i would want to speculate as to what congress would deal but even in that scenario you have a situation where the parties are clearly not using th right and what if they just come in and said you know here we have these two rates positive for business reasons it makes sense for us to go with the dosing ha dosen us a rate it's we're going with that why and here's the document that reflects our procedure what would have been wrong if that had taken place right off so it is i think even the appellant would concede that according to congress's own guidelines that is unlawful ok so that is that's a separate question of whether they're impeding the proceeding but commerce is said that the proper rate depends upon the identity of the seller where the cash deposit rate is not the cash deposit rate of the seller the price discriminator and lose the quote it is not the proper cash deposit rate required at the time of entry so in here's what we're doing it's like you know if you file for a tax refund and you lay out all the facts you don't hide anything the i r s comes back and said ok you know we disagree with you they don't go after you for tax evasion they go after you say you it could be that it's not impeding the investigation and they would have to do it like i said they would have to do it before commerce even decides who the mandatory respondent is because of course the whole point of this proceeding is for commerce to look at the sales try to figure out who has the most sales and choose those parties to individually review so those would have to come in before that process even start and say don't lower the mystery you before commerce has even analyze any of the information and sense any questionnaires at anybody to try to figure out who the proper respondent is those and would have to come in way before that and explain what's going on and it's true maybe that wouldn't be impeding the review but it does sort of highlight the fact that they've structured their sales in a way that's completely contrary to congress task here which is to try to figure out who the price discriminator is to try to figure out what the real united states thank your honor i really i think that your hypotheticals what happened in this case if you look at the joint appendix if you look at both sites that we have to the joint appendix the nature of the relationship between and was immediately disclosed by h s a and then dose and in their responses to the initial questionnaire for that reason thomas never looked at the wrong prices or the wrong data they looked at the correct sales prices and they determine the margin your honor i did want to get back on one quick question you pointed out that the court of international trade said that we had acknowledged not providing something in fact there was a mistaken question that was left blank that was just an that was an oversight and we said that it had been an oversight to leave that blank that was post preliminary as to the production of the e s a what the government when they read the question what they leave out is that the question was for the sales documentation about with respect to a sample sale and that was the question again it goes to read that question i looked at that question a number of times and it seems to be said and you can fairly read it which is the way i think perhaps commerce of the court do to sing or give us a sample agreement of your arrangement and provide us sales data particular sample transaction under that agreement right i mean we certainly aren't resting on the idea that no one could possibly read the question that way what i'm trying to get at is that if you look at the e s a the claim is and remember it's channel you've got to look at what they say they are claiming there's a difference but there's a material difference between the e s a that's eventually provided and what we told them that is not true i can't say it strongly enough a j and dosen revealed the terms the transaction is accurately described in all respects yes ok which is what you would say was the case here and congress comes in and asks for an agreement and the respondent doesn't provide it intentionally hides it and then years down the road it comes to light would you say congress could proceed as it did here even though the green it perfectly does the tail of the transaction others what i'm trying to get to is you know with  congress of congress ask for something isn't it time to get it even if there's no disconnect between the stated agreement and the document right so so st of all i would say that congress could not in that seven f their decision what congress said was if you don't have information st for any of these reasons then you can use facts there otherwise available but if you have all the information and there's it's found out that there's some information that you asked for that you didn't have or there's some document that you asked for and you don't have it but you weren't missing any information there is no basis for applying facts otherwise available and there's no nobody disagrees that you have to have the facts available before you get to adverse effects available but the reason why that that your hypothetical i think it's useful is that if you're trying to think about ok why was the p s a not provided what one possibility is they didn't think it was called for another possibility is they were trying to hide something ok well if they were trying to hide something then when it was produced one would discover what was hidden and there was nothing hidden again the the employer commer of being not forthright they had advice of counsel but said that in a circumstance where dosen is the producer and ha is the export or that they should pay the lower rate in any event it's not material that's a that's an issue for customs customs finds out about it and indeed during the preliminary phase congress knew that this had been referred to customs they were already aware that customs was looking into this issue and indeed customs did ultimately tell dos and you should stop using the docent a j case you should use the dos and dos in case this is just deposit anyway ok this is not the dumping duty this is the deposit and ultimately commerce needs to determine but dumping margin so that the proper dumping margin is imposed in the preliminary phase that determine that was five percent in the nd in the rd phase after this was over they determined it was nine percent they imposed one hundred and fifty four percent dumping margin because for reasons that they give in the order that you can read and they are defending those they said that we were misleading we weren't they don't claim we work they say that this came to the prices they didn't they don't claim they did or if they do it's completely incoherent we provided absolutely one hundred percent correct accurate information in the preliminary phase of this investigation and commerce