we have three argued cases before the court today but before we get to that we have one of the more pleasant opportunities that this clip gets to to go through english or you know clint they say that time flies when you're having fun but here to federal circuit we say time flies when you're working hard s an attorney who will be the next my practitioner and member of our bar thank you so much for your work my chambers and everything you've done for our court we now need to take this under advisement i completely agree but i've also familiar with with all the great things that you have done for the corded and how well you have worked with my cards over the years division of bacon happen toes with the courts and gardens i think i'm going to dispense with a lot of the usual throat clearing and background and just get to what i think is the eight hundred pound gorilla in the room we have a case about the corroboration or lack there of the p r c white race and if i were sitting where you are sitting which i appreciate it's not an exceptionally likely turn of events but if i were i think i would ask listen schieffer is there anything left of your case in light of our decision in the  case just days ago and the point that i want to make is that i think i feel very strongly that the answer to that is yes and i'd like to share of why i think that in that case here's another court characterized with the commerce department due to the court said congress found that by quantity the condoms accounting for a significant volume of merchandise under consideration were sold the prices that resulted in margins which exceed one hundred twelve percent mar et was at issue in that shift a little bit later on in the courts congress reasonably relied on the significant volume of sales by the largest cooperating exporter in the review that they were using as percent in that period so we're going to lot of sales in the neighborhood of two hundred sixty percent so i submit that mathematically it's exceedingly unlikely that there was a significant quantity of sales on economy economy basis at those levels but  rate that there does it there is no need to individually corroborate that right well i don't know if there's a need to individually corroborate the rape but there still needs to be something to support and it seems to me when you have when you have a situation where as here the rate that they're coming up with is five times what the worst margins are for cooperate in response now i understand the court has said over and over again look we're not going to treat non cooperating respondents the way we would if they were cooperated fair enough  but the cooperate response we're getting the roughest margins are getting margins on the order of forty two percent and so it's going to be congress's position that all those of those respondents are selling it somewhere between twenty and forty two percent everybody else is selling at two hundred plus two hundred sixteen percent it would seem to me there has to be some corroborative basis for that i mean when you travel the worst margins that people are getting you're not still not even close to the number that they're apply here and what they've offered as support for the proposition that this database but i would except for the purposes that that number probably appears somewhere in there but the question is how meaningful is that it couldn't possibly have been a significant number of sales it's for one x four who again got a forty two percent margin to link that and say you've based on absent some rebuttal and the rebuttal evidence that you're giving us is that certain cooperating and he's got a different individual race but that doesn't have anything to do with the the p r c way at any rate i guess i beg to differ your i think it it does have something to do with it not in the sense that those rates should be a proxy for what the p r c wanted rate not to be but with the delta like this there has to be some explanation for the divide it cannot be th applicants and because there's been no cooperation and no evidence as to why that rate longer would be good i don't know where you can take us well i don't i don't think that is i don't think that is all that there are hard to do your honor i guess that's that's where i differ i think what first of all when you say that rape again not to bang away at this but that wasn't a rate for anybody that was a margin on some small number of sales in that top shrimp they had some meaningful quantum of sales and they said that's we can reasonably infer that the fact that this is a major exporter and the fact that this is a significant amount of sales and in fact their margins well above this rate within that significant a little more of a showing when you have this sort of a delta and given this passage of time and i'm aware of the precedent that suggests that the length of time by itself isn't dispositive but i'd say that time coupled with the results on the record that we're seeing is nothing there's nothing  innately wrong with going back four in five and seven in ten years to look at a rate particularly where you have a couple of what what effect has that decision had on your your blue room well frankly what i think it what it doesn't in some ways it did it it doesn't it's not super helpful but i think if i think it does what i thought well i think it does is it it if nothing else there was some math done right elementary school principals there was some workshop in adventure there was some quantitative analysis that said here's what's going on with the sales and here's why we're doing in this case they had a rate that they liked and when hunting around for some basis to support it and it's the gruel is very very thin but you did you ever argue a love that the original rate was calculated based on too low of a sales i mean as i said i read your briefs and you know there's a little bit troubling because you cite cases for propositions they don't really stand for but you simply made the argument that they had to make an individualized raid corroboration as it related to your company your client so i don't see you ever questioning the original determination that that was the p r c why and to do re which original determination because we certainly did original number that they chose well you mean for the for the from the two thousand and four review yet well i'm not sure how we could challenge that without having been on the record of that review i mean but i mean now you're telling us that we should go back and say think commies should have done some kind of extra corroboration but you didn't qualify for a separate read so i don't understand what is the rule of law i want to well but but what is the rule of law and want us to adopt that the p r c wide range whether applied in the context of adverse effects available or just applied while the p r c wide rate needs to be corroborated meaningfully and it's our position that it wasn't that wasn't done you both  think for example one way to do it would be to say look and just sort of going off the cuff but one way to do it would be to say the warst margin that anybody's got in the last five years is forty three percent we're doubling that to provide incentive for people to cooperate that's worse than anybody but that is far worse than anybody has done it's tied to a rational number meaning that the margins that actual companies are getting an ongoing reviews and it has a built in incentive to to do this you what the president suggests the presence of jest that you start with some sort of commercially reasonable verifiable number and then you add in an incentive to incentivize cooperation if there isn't there what happened here i mean they started with the birth five number shows data of some of some margin in the neighborhood of two hundred sixty percent reflects commercial reality when even the seller had an actual overall margin of forty two percent i don't know whose commercial reality that represents ok i think i'll give you two minutes rate using the most current verified data available the statute supplies the standard it's not meaningful corroboration which suggests subjective inquiry the statute sixteen seventy practicable which has to do with the using the information that is reasonably a bailable to commerce at the time and here there was no cooperate in respondent in either the two thousand and eleven review or the two thousand and ten review commerce look back to the most recent reviews in which there was cooperated respondent data verified on the record that was in two thousand and eight and two thousand and nine and commerce found in this is set forth in a substantial percentage of sales from cooperating respondents in the same industry as mayo g to corroborate the two sixteen raid specifically to respond to the argument that was presented to you commerce relied upon a large number of transactions that were up of two sixteen in looking at the term transaction specific margins from those cooperated respondents in those two were views and in addition commerce relied upon a substantial percentage of sales so we have it the exact same circumstances that the judge granted you were present in your decision in a substantial number of transactions a substantial percentage of sales from cooperating respondents in the same industry as the pardon the where in the record it says that commerce relying on substantial numbers of sales above the two sixteen percent you are that is in the federal register notices from the two thousand nine hundred you and the two thousand and eight reviews i don't believe those are in the joint appendix but we'd be happy to provide those of the readily available also if the quarter because you don't say that in your br to provide the specifics those are confidential but we'd be happy to file those under seal but what we do have why isn't it kind of surprising that the way you argued this in your brief was not anything like you just said what you said is there or that he relied on a number of our from from transects transactions specific margins and you found that the transaction specific dumping margins relied upon were not unusually high or otherwise you know program number of transactions specific margins we have and you don't ever say that there were at that substantial numbers of those were above the two sixteen percent and i never understood that from your brain number both in terms of the number of sales and as a percentage of total sales quantities and your honor if the court wishes to have the specific numbers that if you order is to provide of the be happy to give you those numbers i'm very provided that information to us in the first instance your honor that that issue was not squarely litigated in the trial court and we did not anticipate a that being well it wasn't in the trial court record and so we are somewhat conservative in putting together the appendix but in response to the factual assertions i'm telling you what the facts are your argument here is that the federal register notice you respect in those particular reviews will nervous to the fact that she said just so you're reviewed that correct are or both in terms of the sheer number of transactions as appendix of if the court which is us to do so would like you know we think that the fear congress found that the china might have a raid was relevant because it was based on a previously calculated rating for a co operative respondent named knew which was operating in the same industry as me o t and commerce found that the china five china wide if a rate was reliable because for three reasons it was based on verified sales in cost data trim do completely foreclose part david's case here in those two cases which are strikingly similar to this one the court sustained congress selection of a china  wide f a rate based on the previously calculated rape when there was no current record evidence that indicated the rape lacked probative value the only thing that mark david points to as suggesting that there's a lack of probative value in the half a rape is co operative responded grades but those are apples and oranges those co operative respondents have separate status they are not even part of the china wide entity and in ad hoc shrimper the court held that the rates calculated for separate respondents have quote little bearing unquote on the china wide f a rate and indeed this court has long recognized that if a rates are typically higher than those rates for cooperated us because congress corroborated the china wide f a rate to the to the best of my recollection i would say no your honor because again it's to the extent practicable commerce needs to corroborate i believe and done type economy there was no transaction specific margin data available and and not nonetheless the court sustained based upon the reliance on a previously calculated rate for responding the same industry so if the information is there to use the co operative respondent data is there to used to corroborate that congress would prefer to be able to do that analysis but it's not always as a practical matter going to be available and so converses necessarily mu rely upon what is available in a particular case ok thank you nine cooperate this two sixteen percent rate was calculated in two thousand and five and the two sixteen range that transactions those were not cooperating and they were not cooperating and of these they were that was based at transaction specific margins to determine whether or not there were margins above the two sixteen percent rate and it found there were more than one at least more than one transaction sitting margins about two sixteen percent rate i don't see that whether it's one sale or three status of it but the fact that there are our sales you know in a database for a company who gets a margin of forty two percent the fact that there are sales in that company's database that are some much higher than that i don't think that's probative of anything you raised this crime ration issue in this fashion on a subpoena because you didn't really argue with that wave of love is that true well i think we've always argued that it needed to be corroborated and the corroboration using this this two thousand and i that's largely a reaction to to the at oxford case because to me that was that was a key difference and so i'm addressing that i guess slightly differently but the larger point was always that that data wasn't probative even of what that exporter was doing