scheme is represented that once you depart from the mandate to review each respondent individually you're in a different church or where the mandatory respondent stand in the shoes of all the non mandatory it's cooperating response and so runs one when you were saying the statute is neither ambiguous nor silent so what is the statutory provision that you believe absolutely gives more clients and help from under individually investigated and then says shall determine in accordance with paragraph five the estimated all others rate for exporters not individually investigated and so they're basically this this is when read together it has to be read together with the sampling provision you can't circulate so i don't or i don't see where this says anything at all about any intent dumping duty were and you're not continuing to be subject to it well what about why i'm saying that we are our position is that the court has to read these various provisions together that when the sampling pr is leaving me completely without any sort of firm conviction that you're right anderson out front step one because you're not able to articulate precisely where the statute brings it all together you're sort of the more fiercely using your hands a lot which is not a good  step one argument so why don't you go to whatever your chevron step to argument is because i don't see in the statute where congress has been neither and you can see more silent in your favor when the question of whether you get out going to be anti dumping duty as you know manifestly contrary to the statute so you're you have a situation where the government has found no evidence whatsoever that the all the others companies were dumping yet a place so my permanently applied and if they don't bring order to them and so we would argue that that allocation of its resources that it decided to spend resources reviewing other mandatory response in other cases rather than more mandatory responsiveness say you wanted them to review you individually well we didn't but the five plaintiffs in this case  my ten minutes did not request individual review initially but in the in the course of the rd and th remains we offer a tremendous amount of information to the government and the government said no we have to do full review or nothing but they never said because it was a and so not with it please the court you want everybody including under the order to the maximum exactly so i would stand in the arguments you heard the court of international trade correctly defending any aspect of the trade court's decision and now we've we've given our time to the government to do to defend those those aspects so we did it in our our brief presented correctly concluded that according to the plain language of the statute exclusion from the dumping order does not apply to any separate respondents that have a zero percent margin so there is no statute and you can general the separate people are not going to be excluded but is this the only page where commerce talks about the subset of the separate rate people who wanted but were denied please you're understanding is that we are reviewing the commerce decision right in the same way that the court of international trade was reviewing the congress decision correct so the commerce that the court of international trade said there's something very strange about treating the would be individually investigated  companies the same as the ones that didn't even volunteer and it least in thinking about that as a matter of did they did commerce have a good reason for treating them the same i would have to look at this page to find the good reason well yes you can also look at this at the statutory scheme and so i'd like to address that as more the last letter this is statutory scheme treats all separately respondents the same so once commerce identifies just that a chinese company is a separate respondent you can receive receive a zero percent margin but it cannot be permanently excluded from an ante dumping more so commerce is therefore properly concluded under chevron one but the plain language of the statue in terms of where where is the statutory provision that talks about exclusion from an anti dumping duty order i must say i don't think i can find one well there is there's a provision about excluded from a determination that the exclusions  well there's a reference to de minimus dumping margins as well and ignore them and in the course of making a determination correct isn't this whole idea of excluding from the order which is to say excluding them from being subject to administer interviews suspension of liquidation cash deposits and the requirement to submit information with my understanding you can correct me if i'm wrong those are the three consequences we're talking about rate that that's the consequence we're talking about about under the heading of excluded from the order and i'm not quite sure you're making a statutory argument that that i'm not quite sure where the statutory argument comes from without a statute that even talks about the concept of excluding from an or it's it's because because again there's a calculation of the weighted average dumping margin but it's only for specific acts four years or producers which means that through that in this case the three companies that were individually examined and therefore those are the three to whom all of those potential consequences applying clued in exclusion from your other words there has to be a weighted average dumping margin calculated in order for those individual weighted average something larger so so that's that says here are some people we're going to exclude where does it say except for those people everybody is it so there's just a whole weighted average jumping margins of of the other parties and that that's what never happened here so again there's a separate provision in the regs that states the only parties that can be excluded  the secretary determines an individual way that average something larger i think the point is it says those people are hereby authorized to be excluded from but you keep using the word only those people where is that well those are the parties that have had an individual weighted average dumping margin calculated under the under the statutory term and that has to be for a specific x for want one that is individually and fully examined one whose question your responses are submitted one i think you have your opinion and we way exceeded your time so i left with any objection let's hear from the government know right so we did we disagree with the decision so we had an opportunity to appeal and obviously we don't have authorization to appeal it as to whether we could have spoken to it in some other way it would have been extremely awkward for us to because as you can tell this wasn't really raised it was certainly wasn't raised before the court of international trade it wasn't in the party's complaint it became an issue during the argument before the trade court during which we indicated to the trade court that it was our position that that issue had been waived commerce has never addressed the issues so we have no is responding in that portion of the determination to a comment i find furniture on page four hundred and sixty one of the remained determination  and here's the comment it's about most of the way down it starts sorry i'm page four hundred and sixty one of the remain determination where commerce goes through all the comments that it's received fine furniture department ignores the folk western air was fined says that are on the record and that it requested to be a voluntary responded and that's the department's claim that the regulation should not be applied to separate to the respondents  carries no water with respect to find furniture whose actual behavior is on the record so what fine furniture is saying as all of our information is here just look at it fine furniture it never claimed before the trial know circumstances like this or be excluded or is congress for clues from that night of this year or two decision assuming a decision all right so if this court were to affirm the c a t decision in full including  theoretically have the discretion right to speak now courts when when an agency has an exercise that discretion and there's a vacuum courts can step in and say based on policy or other grounds what the answer because we have to decide cases but it's for commerce to decide policy telling me commerce hasn't decided this policy question then if we affirm the c i t why wouldn't still be a completely open issue of vailable for commerce to consider but i think it would depend upon the scope of the court's holding if the court holds and again and i'm way out of my lane here because it's not something that you know refin that we have explicitly not taken a position on but i think that if the court were to hold  that that under chevron two it was reasonable for the voluntary respondents to be excluded from the order i think that there is a window for commerce to determine something different in another case if but it depends if the port hold under some somehow under chevron one and i think commerce his hands would be more tied well i mean and but if you know you did i give you the see if we were to accept your position which as i understand it and confirm for me if this is your position commerce did not take a position on whether the voluntary respondents must continue to be bound under the anti dumping to be or that is correct so congress did not take a position correct so if we read read c a t s saying basically on the record that i have in front of me which doesn't actually include physicians an yes so i have about a minute and a half so i'll get to the issue that we actually are defending and again i think this is  question the statute just doesn't say anything about what you do with all others when it comes time to determining whether there's an order what the statute says is that you look at the individual weighted average jumping margins to determine whether there should be an order and an order rises and falls on those margins if there is no weighted average jumping margin that suggests that there is something and then there is no order and one of the things that i want to be sure to do is to point out the chart at the back of john's is brief where it has a list of all of the times where in its view commerce has behaved differently but i want to look at and i'm just going to read from the  calculated and all others rate because it has not reached an affirmative determination so what commerce says in a situation where there isn't evidence of dumping is it doesn't even get to the all others question it doesn't calculate a rate it only cares about whether there is evidence of dumping and evidence of dumping can only be shown by an individual weighted average dumping margin unless you are in this situation which has never happened before where you have an order that continues to exist by i would say minority but that would be my best guess but i also represent that this conflagration of events is very likely to happen again where you have all of the mandatories that have gotten judge gordon found for the voluntary applicants he said there's some free play in the statute so he went to chevron to and he said that commerce arbitrarily applied the statute as to the voluntary applicants and that is correct for our client fine furniture submitted over a one thousand pages a question i don't i don't think that really you have to talk to home because the government has suggested that commerce did not make any sort of an informed determination regarding the voluntary response i disagree with that contention because from the very st day of the initiation of this case in november two thousand and ten fine furniture asked to be a voluntary response asked congress to review its daily because if you disagree with that there's a chance to lose whereas if you agree with it i feel like you're walking out of here with the wind in your favor that you should be excluded by virtue of having offered right exactly commerces not denying that that is appropriate on appeal right they did and in fact they're suggesting they took no real position on the issue of whether you should continue to be valid or not by the and if you've ever which means that the courts need to make that assessment you've got one court that already you said what it said entertaining and involuntary applicants maintaining an assumption that the voluntary applicants were dumping i'm sorry do you want us to vacate and review and make commerce look at your data or aren't you just happy to be out from under the i thought it was the lady now oh you're on the same team oh yes she's up thursday panel on thursday ok so theoretically i have two minutes to defend the separate company that was excluded in three minutes to reply on my main appeal for the five years where he would have it go ahead my only point on my separate company that was excluded for having requested voluntary treatment is that although it didn't put a huge of information on the record on li fine furniture it and the other five opponents i got included in the order in the course of remaining three and four when the judge wanted to open everything up and say let's we don't need to make assumptions that respondents are going to give you a lot of data sales databases all kinds of information so you everything or nothing and we don't have the resources to do everything so we're taking nothing and then the joint judge allowed them to infer the penalty to the separate companies based on the non reply replying to company and that's what this st panel overturned you can infer dumping to the separate cooperating companies buy based on the p r c entity and she gets it just chance question how often does commerce have volunteered respondents almost never and so it's and that's because they find that it would be yes that they just say we don't have the resources to pick more than the mandatory response that we selected and and they usually select two or three at most so many of you know all one hundred dollars right importer volunteer they they end of know ahead of time right if they're not going to get individual the exam right and so it's a huge waste of time essentially because commerce will pick them if one of the three mandatories quits congress will take a replacement mandatory or potentially well it's not a huge waste of time because if you get picked and you get individual review and you establish entitlement to the zero then you're out from under the antidumping do you order right yes but anything you don't get  and if the rule of law that comes out of this case at least for now until congress looks at it is that that gets you out from under the anti doping do you or the mere fact that you volunteered and proffered a bunch of data gets you out the same way as if it had been reviewed then you go in there to wri from under the antidumping duty order then they don't continue to submit all those documents correctly would submit that that it sounded reasonable to require companies to go through all that in commerce essential is never going to pick them i think the lower court is lawyer but it struck tony an interpretation of the voluntary response statute ok so when congress is never going to pick them but if the rule is if you volunteer and proffer of the data and they choose not to pick you you're out why is that a bad rule that will certainly cause us to give that advice to our clients with many what are would not spend the hundreds of thousands of dollars for the one percent chance they don't know spending for the one percent chance they get pick their spending it in fact probably hoping they don't get it because then they don't have to spend hundreds of thousands of dollars and make it out well if so it's a believe like that where it's like i'm not going to jail free card that you get from right i understand your position if i could was you just just to contrary from commerce it's reasonable to conclude that that is to fail to exclude somebody who asked to be a voluntary responded and supplied full data then it might in fact be very order because we'll never assign a rate to the so they all others companies i mean they could never terminate in order to pick one or two or three minutes to respond as they have their de minimus while they still have to impose the order because they didn't calculate individual rates