good morning and i actually have a preliminary matter to address to the panel if i may at nine hundred and thirty this morning i was advised for the st time of some kind of an arrangement between the government and for the defendant appellant whereby the government was giving them extra time for argument until this time the only indication on the docket of this case had been the negotiated allocation of time that i reached with m schutz where i had given him actually more time than us because of the complexity of his issues so that we had seven issues for our argument seven minutes of argument for ourselves and they had eight now i understand an initial five minutes has been given without any notice to us to mr schultz and mr marsh act to argue so it's highly prejudicial to my client there's been no indication of this to us until this time if this is allowed to happen they will have thirteen minutes of argument and we'll have seven i prepared for this argument based on the allocation and the where is that extra time supposed to come from the government apparently is yielding time to the appellant defendant i don't know where it's supposed to come from and i and don't know that i don't understand all the details because as i mentioned the plan i thought of this morning i had no indication this is the case when i went to the clerk's office to inquire they had no indication indicated to me they found this very confusing it's and recommended that i bring it up to the panel so i apologize for this imposition but it's very important to us because the prejudice that could result we respectfully ask that this not be permitted think duty investigation concerning imports of nails from taiwan and it is a factually rich record much much of which is confidential so i don't tend to develop the plea into the facts because it would be limited in what we could discuss here  what i was what we need to know are you saying that this court room should not hear what you might say about confidential information or just that we should be careful in what gets written necessary today absolutely are so the the record of the underlying investigation shows a relationship between the mandatory respondent and a large number of an affiliated told producers substantial evidence on the record bloke demonstrates for a variety of reasons that those top producer should be deemed affiliated as close buyers that's it that's not enough legally for you to win this the fact that you that the commerce and might have found in your favor supported by substantial evidence doesn't mean that it couldn't find against you also supported by substantial evidence well our position your honor is that the record does only sport one outcome which is evidence that's much more than substantial evidence you need much more than substantial evidence you need to show that it was in its own right and reasonable for the commerce of these facts to conclude that the kind of control that's at issue in this rather than legal  are very clear that the ability to control is not to correct it is not to control it has the potential to have an impact of why it why i guess that the fact that it seemed to me commerce relied on centrally let's call it is run ins are essentially ok is that all of these suppliers had they chosen to could have found other buyers and that was enough for commerce to conclude that they were not the maybe maybe i've mistakenly introduced two facts i guess i'd like you to talk about just one of those which is commerce is finding that there were other importers that were available for the eleven or so you say allegedly if really affiliated but they said not affiliated nail makers to that they could have sold to and as long as they couldn't sell to them then there really to control them because if they tried to control they go elsewhere having the potential in fact i think we're what we have to look at is what actually happened in the period investigation not what is speculative we possible the facts about what actually happened t indicate that in nearly every instance that potentially even if it was there was not exercised the other item i would add that is it's important if you mind the statute talks about a close supplier relationship not a captive supplier relationship co administration of the statute here it requires actual control and if you look at the factors they list and how they justify reaching a negative determination they're looking for a captive supplier not a close supplier you can be a close supplier you can  and you can be subject to influence by virtue of a close apply relationship even if you have the potential ability to do business elsewhere the question i think that should be asked is what really happened and what really happened during the period investigation the record shows very clearly that you can talk about the potential to do to provide your services to other parties but did that really happen that's the question that has to be addressed as long as petey was not abusing them why would they change you don't have to abuse aspire to have a close tie relationship that's exactly why congress amended the statute in one thousand nine hundred and five as a statement of an administration act as a ministry of action states it was to allow the department to and i'm paraphrasing here to better come to terms with the complexities of modern business relationships that don't have to include an equity ownership relationship to have affiliation and what we see on the record of this case is exactly this kind of a situation you don't have to have ownership you don't have to have a complete captive you know completely captive producer to have the ability to impact solutions concerning pricing production or cost and that's exactly what's happening the record i think we think it's important to address both the fact that the commerce department analysis relied on improper legal standard requiring actual control but also that the trial court below affirmed on that basis incorrectly and you can look effect on decisions that's requiring actual control beyond what the statute requires and even what congress his own regulations themselves require congress regulations and the preamble to the regulation are very clear that actual control is not required to support a finding trivially mathematically wake them cracked so what does the collins detest that congress adopted say about that ok so i think you have to look at what is what is the comparison really trying to make with this actually so clear about when you have different pool sizes which how you do the averaging weight weighted or or not what does so i don't see a we adopt the following which tells me it's weighted average ing necessarily say which one you have to do but i haven't seen but i've seen it for she's ok you've seen both versions so when you're looking at what they did do here you have to look at does it accomplish the comparison that they're trying to actually make and what they're trying to do here is figure out ok do the means between these two groups grouping group b the task group and the base crew i think i'm looking at the means st and i'm taking a difference between those two means and now i am trying to compare well does the difference between these two groups the price difference between the means does it and is it in line with the price differences that are occurring throughout the group and i think that when you look at the examples that we provided on page forty five of our director you and our prime grief you can see that if you don't wait the average and you don't take into account sample size and how big the different groups are you have an in accurate picture well i don't want is going on in that group but it seems to me that your numerical example certainly shows that you can get quite different answers according to whether you do simple averaging or weighted average or what is the argument for why as between those two different ways of doing it in your view only one is permissible or is it in ecu or or another way of saying it s the base group and the test group accounts for one percent of the total sales of this condom and the base group accounts for ninety nine percent ok so before i even do the pool variance if i just look at this price difference of point twenty five and i look at the base group which has a standard deviation of point four which means that two thirds of the prices within that condom are within that group are within zero dollars forty cents of the mean of that group if i look at the point twenty five dollars difference i can see well that looks like it's going to be not significant looks like it is in line with ninety nine percent of the price variations that are probably going on in this con and when you take the weighted average if you take the pool that variance calculated by the weighted average which ends up being point three hundred and ninety eight you can see yes this point twenty five is not significant and it is consistent with what is going on in this con and it is consistent with the pricing behavior of this condom but when you take weight out of it now we are simple averaging these two standard deviations and you have a simple  cool variance of point twenty eight dollars this price difference of point twenty five dollars which was clearly within the range of ninety nine percent of the sales of this condom now suddenly is a significant price and you can from that i can see to me that looks completely inaccurate because because it is not capturing what is actually happening within this condom and congress has an obligation to calculate the dumping margins as accurately as possible and that extends throughout its calculations including the cones and of commerce is trying to figure out are the prices in this group this task group are they significantly different than the prices that are going on in the rest of the con if i'm not taking weight into account i'm disassociating weight from price which has a big impact on price i'm getting an in accurate picture of the prices in that con and that is ends up sometimes like in this example triggering significant differences where in reality when you look at it mid continent points to certain record evidence that it believes demonstrates control or the ability to control and or alliance commerce made a determination legally correct finding of inability to control and you have leased so maybe start with the legal aspect absolutely your honor commerce utilize the proper standard just that one uses to make a determination about control and continent argued what is perspective and one is present so ability to control is perspective but we start with determining ascertaining whether or not there is any actual control going on between protein and its tollers commerce made both determinations underlying there is no current control and there is no ability to control which is the potential that the statute and the regulations and the  a speak to the ability to control the potential to control are the same and the issues and decisions memoranda is replete with references to the  it then turning to the evidence what is the evidence for finding insufficient ability or no ability to control not withstanding some of the facts that  protein because these tollers could seek to sell their services elsewhere two hundred and thirty six other taiwanese male producers comers explain that any company may exercise control over another company such as the tollers here protium in an overseer or becomes or may be reliant upon the controlling company which would be pro team here the evaluation of actual control is as much the same as the evaluation of perspective or potential to control both evaluate contractual agreement that prevent the allegedly controlled company from conducting business outside of the parameters of its relationship with protein so here comics made a determination that there doing not to to justify what they're doing and to use the word skew doesn't tell me what what it is that skewing means why is it relevant for the wrote for the purposes for which cohen's d is being used to implement the statutory provision is it sensible to give equal weight to a two unit group and  groups equally so these there are only two groups to compare here at the task group and the on the puritan group which is all the rest right that's correct your honor that's correct your honor and by measuring with a simple average it equally reflects the respondents pricing easier for the two dollars groups so it is the pricing behavior and not the prices themselves that are relevant at this and so what that means is if you used a weighted average or here you would it would result in in appropriately moving the pricing behavior towards which if it makes three different challenges to the methodology but just focusing on this one if p t were right about this challenge would that how would do we know how would that affect the ultimate determination of an anti doping tutti margin is that eliminated does it put them under the demin amisse level or does that still leave doesn't specify what i think this is this argument is not a statutory argument i feel this is this argument is all of this is just and reasonable the other statutory evidence which we didn't hear about this morning perhaps because apex makes a very difficult but this is not a statutory or this is just you you have not shown why this is complex you've comers as not explained why this is actually a reasonable way to proceed given the relevant st it is with then commerce is discretion to determine how to identify i think not the can't price difference and we believe that the use of simple average is reasonable using a weighted average may also be reasonable your honor but that doesn't detract from the reasonableness of using a simple average commerce again uses the simple average sustaining commerce issues the practice as well as the simple average i believe my time thank you your honor and for all these reasons we respectfully request that the they please the court we'll be what they call our time i don't think with respect to the clothes supplier affiliation issue it is our position that the record supports one and only one reasonable outcome  captive producer not merely a close supplier summerlee the lower court affirmed using it incorrectly will scatter moreover the government's analysis in the underlying investigation was made on a collective basis there's no evidence  record providing any type of an individual lies assessment of whether these totallers on their own are individually in close supply relationship and ultimately the very substantial record in our opinion supports relationships thank you thank you and the question that i kept asking in response that was why are we waiting them equally we know what the weight is of each group we know that in our example you have ninety nine percent of the sales of this condom are occurring within this base group why am i not taking that into account if i'm trying to accurately determine whether the price difference between the base group and the test group is in line with the pricing practice overall in that group or in i'm sorry in that economy so for example if you're taking the st quarter that can only be one reasonable salt on what we believe is just asking the court to reweigh the evidence on st on the legal standard we believe that department of commerce and the court below used the correct legal standard they look