no i think we should all begin by thanking each other indulgence because this is a very confusing case in terms of the parties are and what they're arguing and we've got across the interior and so forth so if you would help me at least if he could start off with five seconds of discussing what your position is before the court this morning mr freed good morning to judge and your  import data including all other potential sort of value information work which represented ninety nine over ninety nine percent of the record information with respect to nitrogen prices the well could concern is we've got a deferential standard review and the standard seems to be whether it's the import data is average just because there's the import quality is low and how would you say that we have to assess that what are the rules of the game with regard to the converse we agree that small quantities are not inherently unreliable but in this case we've demonstrated have some problem commerce or there's an allegation of some unreliability or aberration converses default test is to look at other countries that are similar only economically comparable to china and look at the import value into those countries and see if the the thai import value for nitrogen falls within the range of the countries here that they said  information was it was not presented as confidential information but it was not from a like a published public source it was an actual invoice between domestic type parties so  us data that shows what were u s exports to thailand of nitrogen during the same period and we provided a table of page eighteen of our replied read showing that these these data ar imported ninety five thousand dollars of nitrogen during its period but the u s i'm sorry the u s reported that it did export ninety five thousand dollars of nitrogen and that nearly six hundred thousand kilograms  but for some reason the thai data only shows four thousand kilograms of imports and at three hundred thousand dollars of value what did commerce say about that they said that they don't  use export data as a benchmark well our point is congress has to consider the record as a whole they were presented with evidence the type import data sayin this represents high imports of nitrogen during this period that u s exports to thailand that just did not reconcile to what thailand said they were importing from the u s we had two data sets purporting to express the identical trade and even putting aside you might expect some small differences the differences here are so stark that you couldn't reasonably conclude that both data sets were correct i don't understand how it can be the same trade because in your own chart the u s data is for quantity of five hundred and eighty six thousand whereas the g t a data is for only four thousand dollars so can the pricing can be for the same quantities exactly they something is wrong with one of those sets of data because well the problem is if if if something is wrong even accepting your proposition  evidence on the record on what dr nitrogen is valued at putting aside the small quantity of imports into these other countries again ninety nine percent of  source of information for evaluating nitrogen and so the import data is simple here in romania show large quantities of imports where there are large quantities of imports  of all six countries so the the g t a data itself from all six countries corroborates those domestic prices that we were providing  they they don't they just say that's not how we look at it we don't look at kind of look at everything and try to figure out among the six countries what's the average price that you just say we just have this book at method we say there are six by by trading partner or country of from an importer country to export collected by customs correct ok so so that's why i say we're talking about the same trade because it  well they do say that it doesn't make any difference but i would say it's still incorrect we in at the agency level and at the court below part of the argument was about still correct to exclude the value doesn't make a difference it makes a it does make a difference because every time you exclude a a quantity from the denominator and you're clue you did you make it what we're in the record to do establish the makes them different in terms of the impact i don't know i can't give you the exact impact i think the government brief that pages twenty two and twenty three tells have some data and i want to know if you disagree with that that's where they say the total value of import quantities represents only  point five percent of the total value of all data point familiar with the argument they're making and i just wondered if you had any read that was there are those they gave data as to why this is to judge three courts are allergic to deciding hypothetical cases and the government basically saying this is a hypothetical case it's not a real world case in this respect degree of undervaluation situation where any choice is arguably imperfect and the government has demonstrated that it's imperfect choice of two imperfect choices doesn't matter anyway what's wrong with that i would say what's wrong with that is that when we if we round a number to zero the kathleen a weighted average what should the weight zero it shouldn't factor into this weighted average calculation if you would take if i can finish that thought is there any other questions i guess  case both are unsupported by substantial evidence and in fact are contradicted by compelling revathi record evidence the st is tempered glass in this situation the court of international trade committed to instead value the glass using gary and data commerce fully analyzed this issue in its final results in the review and further in its st remand results and both times it appropriately determined that the tie surrogate value for tempered glass was not aberrational based on substantial record evidence and consistent with its past practice so we have three me hassle isn't th question really not whether the st use of a high data would have been acceptable but whether the ultimate data collected is aberrational so in other words we're not supposed to decide unit value it does not pick and choose values for individual imports within a surrogate countries import a u v and that's that's what the court has asked congress to do which was incorrect and things st it looks at import values for the same harmonized tariff schedule number from the other potential surrogate countries in a given case and nd it looks at the data from the same area schedule number for the same surrogate country in this case thailand over multiple years in commerce followed that practice in the underlying review it selected the value from thailand which was the primary s where do we find that commerce has addressed this point that led to the st meaning about the inclusion of the hong kong data which i recall the court of international trade with regard to the hong kong data commerce clearly explained that if practice is to consider the overall average unit value and not pick it apart and not a lot look at whether or looking for the wood for a decision i'm looking for the decision memo here which addresses this particular point and explain why what they did was correct after the remit and you say they made the change under protest  the united states entered thailand and even higher prices than the hong kong imports so they addressed both of the reasons why the hong kong data was was not aberrational and why they didn't pick it and if my recollection is correct about that unless commerce agrees that it made an error of the st time round that you can challenge the court of international trade agreement and decision broad oversimplification of a highly technical engineering set of goods that go into bakshi commerce commerce simply chose the categories based on the primary material and each which you're defending to judge o'malley point with respect to the backseat we should look to your current decision to see whether there was an abuse of discretion is that correct  this court or asked the trial court to substitute its own methodology for that selected by commerce and that's not the role of the reviewing court i think it's also important to recognize that what congress is trying to tease here is not to corroborate trina's purchase price or to construct a global average it's trying to ascertain what the what the service cost is in the circuit country that is thailand and so congress did follow  data and i think what we would say about this what the trial court said is that trying to compare or use export data to call into question import data is  comparing apples to oranges we don't know how we can assume that the data is being collected in the same way or are being accounted for in the same way and so on page fifty eight  using export data to call into question import data as a trial court explain its recently discernible that congress would not consider export data to be a measure against which to assess the reliability of import data data from thailand against g t a import data from other economically comparable countries that makes less sense to look at one particular data point export data from the us and to use that to compare take import data from thailand is is unreliable because there's other imports from other countries well and we don't we don't know how the data is collected or we can't assume that the data collected in the same way for the for g t a which is a private service that congress has a lot of experience with compared to the i t c data web information which is collected from customs reporting in the united states so again even if it's the same e t s categories we don't know how the data itself is collected and so the more reasonable comparisons in this the comparison that is the methodology that congress has to use is to compare import data to other import data when i mean probably not but that doesn't necessarily require that commerce not to use the g t a import data you know even if those can't be reconciled again i think the way that they can that the explanations for why they can't be reconciled we don't necessarily have that on the record but but that doesn't mean don't know and in light of that it was not unreasonable for commerce to continue to use its own well established practice and not to depart from its chosen methodology  i think just answer the questions that the court had for mr freeh as a practical matter it is correct in congress to find that there's no there's there's data and concluded that when you were to take out zero quantity data points it would make all those no difference in the a you'd be for example for seventy so there were seventy six dollars different h g s categories that congress used to calculate the factors of production in this case for seventy out of the seventy six dollars taking out the zero quantity data points made no difference to the average unit value for fo the seventy six dollars categories there was a difference of one percent and for the remaining two categories there was a difference of two and five percent so overall when you look at all of the seventy six dollars categories broad market average is accomplished by continuing to keep the state in the data set in the day in the calculations because commerce was satisfied that the data represented rounding incorrect and it does the numbers to any extent why shouldn't we say well this is just not an appropriate methodology and may not make a huge difference in this case but it but it could make think that would be our st our st response but even if i think the burden is to show that the converse is methodology is reasonable not just that there might be another way or or even possibly of a better way  the burden is on trying to show that this methodology is contrary to law and it hasn't the overarching methodology is to keep the data set as as a whole and not to start cherry picking out data which is going to make the overall calculation less reliable and less accurate so we converse went through this process to demonstrate that these instances of zero quantity data are random error they do represent real importance and so in light of the fact that it does represent real imports it is reasonable for congress to continue to use this data in its calculations numerator is the are the prices the aggregate prices for each transaction import right you have a you have a number of imports and so the you know the some of the however many imports in that particular category the absence of anything more specific converses selection was was reasonable and converse is not required to again construct something different it has to use the information that's available on the record and it did so the fact that the selection might be imperfect as a score because that is how meridian does not render the selection unreasonable ok thank i'm sorry judge pro started but then the rest of us joined in addressing counsel for appellant which is what is the standard of review here obviously important issue and if apologize i think the briefs  instance dischord applies an abuse of discretion standard and i submit that that isn't that the situation we have here a judge can only try to court was very clear on both of her and said she wasn't finding anything or concluding anything she simply noted that there was some ambivalence internal contradictions within the department terminations both the initial final determination and the st lehman determination that required further explanation so that she could have an understanding of what the department's policy practice or policy really is in this case and so underneath i thought the result look our general practice is to look at a single aggregate surrogate value and we recognize that but the department never foreclosed itself from considering individual u too overlooked that those imports represented only point three percent of the total quantity of the quantity in fact she'd purchased by trina during the period so you can't and by congress regulation they point which is in the same arguments were made with regard to the nitrogen information that trina submitted we're trying to submitted the data and the us price is in line with ninety nine percent of the record data and so congress should have resolved that question instead they said we don't like to use exports for certain values but we were suggesting to use the u s export prices a agency and the court just rested on this notion that congress has a single test to determine whether a certain values have original disk book and method and while that may be a reasonable method in all cases or indeed many cases it isn't because the corroborating end of that book and the commerce used to use this eleven dollars price for nitrogen into thailand is based on a tiny quantity is less than one percent of all the import into the six countries of nitrogen during that period so in this case where we have domestic high prices in thailand we have other export data calling into question the reliability of the thai imports of nitrogen generally the argument here today for the courts understanding the car's permit does this all the time they use the import data and they exclude imports from the market economies that exclude imports from countries that they believe maintain broadly available export subsidies so this idea that it would be difficult or somehow burdensome to also add in the requirement that if the quantity zero we just kick it out if it's not a burden on the agency to do this and so that that's not a real justification when they're already doing pretty significant manipulation to the import data and determine if that part values perfect timing thank you mr commerce a selection of time import data to value temperate glass is consistent with its preference for that broad market representation so yes commerce versus prices under protest but it my colleagues disagreed mr fried had his the bottle and the other side had a chance i think it would be a little bit inappropriate for you to get to respond to mr freak when he is not going to be able to get up and res finding the way all right why don't we conclude it there we thank all parties this is been a bit confused and we appreciate your cooperation in making this fairly feeble thank you all and the