established hierarchy in selecting this rate as a f a and they failed to corroborate selection as required is the rebar it receives from the turkish government rebate of the duties paid on the any court so in effect the it's a duty to draw back program and it's turkish and therefore it should have been applied you don't even get to step three in which commerce looks for a similar program in the treatment of you didn't provide your right that's correct and you of course are looking at the case then overall and the issue arises because the government in this reply brief says that we never provided an alternative for commerce to you and that's simply a misstatement of fact not to run through that in order to rebut the misstatement of fact i don't think i've waived any anything i argue that you are looking at the case to novo and it was raised by the government and it was apply to stand in for that no not just is it sterile but it was that the behavior underlying that rate can no longer exist because because the government of turkey agreed to terminate that program wanted sign dogs of the gas subsidies agreed so the program was terminated commerce found the program was terminated and the government continues to there's only one issue on appeal here today for this court to consider and that is whether commerce corroborated to the extent practicable and using information reasonably available to it the fourteen point zero one percent  it failed to disclose the duty drawbacks program commerce was forced to look elsewhere to select a rate to apply to it and commerce on itself looking at here three of this hierarchy  commerce has to move down through the hierarchy it's confronted with less and less information on the record before it there was very little information on this record for one to two reasons one we only had one mandatory respondent not so bosh and t case i don't beyond calculating the final race i don't know i don't have any more information than that but it repeat came part of the final it was the final determination on t still what is your position on the live controversy issue raised by the bar and spread great i noticed that the government didn't take that same position we don't o disregard that argument but even if we were to consider that rate just on the merits there's a couple of problems with it the st is that it does not comport with the maxim that a terminated program can never serve as foreign government to a producer in a specific program and considers whether or not the benefits are similar for purposes of the program abolished and just that the similarity similar because it reflected the behavior of the government of turkey with respect to a program that was also providing  won't go over those points again here i'm going to focus my brief comments today on a separate argument namely that there is no live peace or controversy that would provide the court with article three  would be helpful if you were to help to explain why this thirty year rude rate is applicable sure you have a do that your honor so i think that t is relevant also since it relates to a similar care of traumatic program and so there's nothing on the record that indicates even though it is thirty years old that's not an appropriate rate i think also just in terms of context here i think it's important to understand that the agency commerce was put in this position by the recalcitrance the failure to cooperate fact that mirrors commerce is languages to the program selection they claim that the pronunciation program is relevant because it is quote another tariff rebate program and quote if it was not direct taxes a supplemental taxes if you have a greater than a given amount of exports you've got a class benefit for that none of these are a tyrant rebate there is no commonality between the export tax rebate program and a duty drawback only possible commonality in fact if one actually reads the eighty six commerce decision you will find that those programs those taxes that are rebated have nothing to do with a with a tyrant rebate actual nine hundred and eighty six decision they would have seen that yes there was verification i read that we verified the responses of the government the bourse on group etc between november four to wrong result there is no similarity whatsoever in in in terms of the treatment of the benefit or in any other terms between the nine hundred and eighty six dollars export tax that that this duty drawback that wasn't reported by hamas is similar to what they call another tyrant rebate program they are simply think they can just pick a number and use a name as substantial evidence you have to go back and look at the decisions we all know