did the plain language of the statute in failing to apply a constructive value profit cap third converses determination that he could not use zero or negative profits and see the profit calculations were contrary to law is to measure the degree to which respondent sells merchandise in the united states at less than normal value of the merchandise sold in the home market it's essentially a price discrimination statute where you look at the conduct of the responded in question and you compare prices between the two markets prior to this case even when relying on constructive value commerce and consistent really relied on a profit value that was based were tied to the home market in this case limitation is only present in the statute with regard to the profit cap i don't see the home market limitation present in the statute with regard to seek out profit calculation it's headed into the three statutory provision your honor  not they're not they're not on our right that is correct there that's just one of the three options that congress had to choose from it's not that they're required to turn to same general category goods of the foreign country that's that's correct your honor all three options are are given without a specific hierarchy but all three have a limitation to the to the foreign country so option one is the actual export our producer in question and there it is the same general category of merchandise in the foreign country option two is other producers in the foreign country of the foreign like products so it's not same general category this option two is limiting it to the four like product which is essentially the subject merchandise but also again in the foreign country and then option three is any other recent method so that doesn't limit it to the home market at the outset however it provides a catch in the capsule is that it should that the amount foreign country the home market the differences are which parties are referring to and whether it's limited to the form like product which would be just the merchandise in question or a broadening which would be the same general category which is broader than the same which is broader than the four like product those are the options that they have to choose from in this particular instance commerce chose option three but it it it chose also ignore the profit cap and in doing so it claim that it didn't there was no because it was no same general kind of work merged ice in the original termination it didn't even make an attempt to cap the profits tied to again the home country in this particular instance on re man it's simply stated it's to broaden the scope of the products it's examining in other words we talked about options one in three referring to the same general category of merchandise which is broader if they chose option two they had to stick with the four like product but it's  broadening the category of products that they're examining that they can still find sources within the home country which is the preference here all three options go to that but what congress did instead it kept referring to the primacy of the forum like product and say because there are there is no other products within the same general category we're going to go and use the profit of terrorists in the original investigation a company that has global operate many times larger than the respondent in question but with no production or sales in the market on remained they included a russian company but again this is a price discrimination statute your honor and by including the profits of wholly unrelated companies from their protection argument i don't see what's wrong with the government's position that the home market limitation only applies to the profit cap and not to the any other recent method but even putting that aside your alternative argument seems to me which is they should not look at russia russian argentina which are selling basically the same products they should have looked at slightly different products in korea we review them under what standard of review mr r it's the same standard first again if we do believe in our position is that when you look at the three options three options require the whole market not just for the profit cap your honor but even for options one in two which don't include the profit cab language i than the exporter producer describe cost one in connection with the sale for consumption in the foreign country or much in other words yes you can use any other recent wall method your honor but it still must be kept by the home market experience that agency regarding the development of the agency record and this court went on in that case to discuss the level that this level of deference was necessary because the pursuit of what the court perceives to be the best or correct result would render render judicial discretion here and it's also contrary to apartment its own regulations and the c i t in this situation it essentially spells that out in footnote twenty of the the court says this is a make or break issue and calmer should do its utmost to be fair in such circumstances we believe this wasn't prejudicial under the department's factual information regulations the respondents did have an opportunity to submit rebuttal information in the seven day period that was allotted and if they felt that that wasn't enough time they could have asked for an extension but they didn't do that and the lower court going behind commerce and its factual information regulations was in error the lower court analogize the situation the apartment's factual information regulations with respect to non market economies which is not the case here so a lower court concluded that the insured information that was submitted at the late stage in the proceedings was not to rebut clarify or correct questionnaire responses it was further data correct that's what the lower court concluded the c i to your honor the lower court took issue with whether it was in fact to rebut and only addressed whether it was in fact to rebut the little court didn't address whether it clarified or corrected one of the lower courts that that clarify it is new data that you had an opportunity to present earlier chose not to decided to present it later and it's hard for me you know you really had an extreme disadvantage because the government hasn't come up here defending its first version of this either have to say no not at all no where in their brief do they defend the first decision that you're trying to do and instead they're up here defending the second position you're so wrecked and that sort of make you just a little nervous information and so they consider the very evidence that you wanted them to consider in the first instance along with some additional evidence at that point correct correct your honor and they reached a new factual conclusion on the basis of all of that evidence correct your honor but the initial remained on that basis we believe was incorrect there was no need to reopen the record the information was properly on the record and in fact just to go back to your earlier question your honor i don't see what was wrong with the c i t did it doesn't doesn't seem to me that that new evidence was to clarify or correct i still going to continue considering the profit information and the profit issue issued a supplemental questionnaire in which it solicited more information with respect to profits and sales in korea and at that point maverick in us the open on a whole host of information that happened to also include that era's financial statement which went to addressing the degree to which sales in korea of product that was not o c fiji are reflective of profit rates for  producers what one would expect to earn a profit on sales of those if you do relative to other pipes what was going on in korea in that terrace financial statement goes to all of those issues it identifies what one would expect as a major producer of o c if you do the types of profits you want to expect to earn and what it should look like relative to these other types of products that they're selling the other issue your honor as we as i mentioned earlier is  with regard to whether the department is required to apply a profit cap in the scenario in the any other reasonable method in a situation we have here that there are no sales of the same general category of merchandise in korea maybe the statute nor the essay require congress to apply a profit cap and we don't believe applying a profit cap or forcing commerce to apply a profit cap in a fact available scenario is appropriate here and that the original decision was correct in that regard and in fact the lower court in an earlier case called we pond court recognized that the usa approves converses no prospect at methodology for cases where no cap data is available at all which is the situation we have here there are no sales of the same general category of merchandise in korea and therefore there it's not appropriate to apply a profit cap in that scenario and with that i'd like to reserve the balance of my time from bottling the support as any  profit cap sure it's and here congress is faced with the choice between having dina profit data that represented the market in consideration or the you know the represent and the product mix under consideration and profit commerce reasonably determined that it was more akin to use the product at issue o c t g given the premium nature of the product here it makes sense it makes economical sense it's supported by the statute and it's reasonable to say you know what we have these premium products your at a high and we should be comparing other premium or c p g products in order to proximate the profit the next c e o would have gained so there's two different questions now  i'd like to go back to the statute one though because short you seem to have moved into the use of russian in argentinean data like products as opposed to nano g c t product data from korea but i'd like to if you don't mind stick with the statute for a second the questions it's all asked about profit cap you agree that if if you're doing a proper cap analysis you have to take into account all consumption in foreign country correct so that means within korea and this case both foreign country and of the same general category so again he has to be tight who both the product and the home market and i three little the amounts incurred and realize for selling general administrative expenses and for profits based on any reasonable method except that the amount allowed for profit may not exceed and so that that's where the profit cap section begins right now it's great that that cracked lock on the step that doesn't modify the any other reasonable method and any method any reasonable method you're going to use is going to have to involve profits because that's actually what you're trying to do determine you're trying to determine profits in order to assess dumping and so why doesn't that except that the amount which then goes into melt for profit may not exceed and ties it to foreign country consumption i don't know why doesn't that get imported into the any other reasonable method because no matter what reasonable that you're going to choose it's going to involve a profit analysis i think the apply alternative three on the basis of the facts available and he goes further to state this ensures that commerce can use alternative theory when he cannot calculate the profit normally realized by other companies on sales of the same general category of products so even the essay is recognizing that you know what you might be in a situation where due to the absences of data on the record congress will not be able to have data that approximates both the general same general category of the product and experience in the home market site that that it has very instructive and that's exactly what commerce had here they had an absence of data parties had opportunities to submit data that would  and to the same general category versus the any other reasonable method is not tied to the whole market so it's it's a reasonable interpretation but i have to go outside the statute and i don't have to accept the s c a's arctic you do not order to get to the cooperate i need the government to tell me that but that's different right that it's not just a house report that it's an act of congress endorsing it was actually expressly adopted as part of the read of a part of the statute itself was actually agreed to by everyone including the president who signed it much stronger that's why it that you ask me but don't worry you don't need to submit it we're going to figure out  sub graph three where where the the home market or foreign country experience is part of the profit language i do understand what you're only trying to say as part of that issue what we do want to point out in the remaining time available is that again there is a requirement for profit kava stated in the statutory language and there commerce reversed course in the final determination where originally as part of its  its same interpretation of the same general category indeed even in instructed the respondents that that was the same general category of merchandise as part of this case in part in the final determination reversed course and and created in  permissibly narrow interpretation were limited the same general category of merchandise to downhole applications no one already for that it came out in the final determination and that was inconsistent even with commerces own simultaneous decision in that in certainly think your honor robert you can just go just a quick we go back the cases mr parker is referring to in those cases that apartment did not wholly examine same general category of merchandise it was something that the department looked at they general category merchantman of all is that have to do with your appeal in our appeal where we're talking about whether there should or shouldn't be a profit cap and what is in the same general category of merchandise and in this situation you don't have all yes because we believe again we have two issues one was whether they accepted the should have accepted the financial statements prejudicial into that there was no obligation to apply a profit that i'm sorry and please continue i just want to make sure you weren't going outside the scope of what was fair fairly within your of i'm going to your honor continue in that explaining on our second issue a going back to your statutory construction argument if there is are no sales of the same general category of merchandising period there is no obligation to apply profit and there are no sales of the same general merchandise in korea because there are no oil wells and there is no oil drilling in korea and the the way the department looked at the same general category was they look that pipe that is of a quality that could go down the hole which would include the subject merchandise here the casing in tubing that would go down a hole but it would also include drill pipe which is not subject merchandise which also goes down a hole and would also include stainless steel in the ukrainian citizen so they limited this same general category of merchandise to something that is broader than the foreign like product which in this case is casing and tubing but it also includes things that are capable of going down a hole and that was how they limited their decision as to what's the same general category and when you're in a situation where there is no same general category of merchandise you have no obligation to fly a profit cap you can't supply a profit because you have no information of which to construct the profit