briefly share in welcoming judge chen to the court i had the privilege of getting to know him when he was solicitor and even the experience of swearing in some of his associate have every confidence that his experience and knowledge will help him get through the decision process today i can't judge a judge newman said slater thank you for the very warm welcome and my high hon fine furniture looking at the language of the statute it says it commerce finds that an interested party has failed to cooperate by not acting to the best of its ability commerce may use an inference that is adverse to the interests of that party demonstrate that in fact the overwhelming evidence is that the average for life against fine furniture they are the party that has had an awful duties collected on its products since the beginning of this case the police unit in that kind of right they are and i think if i may if we can look at the statute if you look at the part a i can demonstrate that the difference when an adverse inference is law there's no question that china is a part of me and my right but i used to be more specific they're an there that's how they're defined that's how they've been designated in statute absolutely and so my question is they've been designated sheer as having the other party with interests in this kind of veiling duty investigation and what i want to know is what are those interests and b when china's interest i think the bigger question is what are the adverse effects that it has suffered and there are none there can be none an question that there then the question really is what are the interests of china can be said to have been adversely affected by using infrared and i think the answer is not there are no interests of china that have been adversely affected there's no impact on china whatsoever but they have to have some interest because there's been labelled as an interested party they are the party with interest as defined by congress in the sense it's i think best that's not exactly the it's the bigger issue is that the editors implications are against fine furniture which is not permitted by the statute and if you compare with the for just one second if you look at the part of the think your problem is solved by trying to construe words in that statute because what homer's did is consistent with the plain meaning of the statute what's not consistent with the plain meaning of  statute is that your client the punishment that's the issue and i don't see anything in the statute that addresses that so you're raising the very interesting problem which is should the collateral damage that occurs as a result of our government punishing the chinese government which they're entitled to do under our law should that collateral damage end up in your client's life i happened in this country we might call it a taking but that isn't that isn't the context in which this case is something that so mostly understand is first of all this is not true that china has an interest in the industry the chinese industries our government spends a lot of time i suspect in american industry in fact this whole system that you're challenging designed to protect american industry from foreign competition short and i don't china have an equal interest in doing that i don't think that we can speculate what china's interests are it very well may be the case that china wants to  it that that is a lot of there is no damage to china and what they've done in selecting this benchmark the commerce did is they went through in cherry pick everything the highest rate possible of all the electricity rates in china and apply that r furniture paid there's no evidence of preference of what they should have paid in what they did but assuming that an adverse inference is permissible here then that's how a person for instance work but it would be permissible then to go ahead and  that and i think that your question your honor goes to the question of what is the gap that commerce is trying to sell the only reason we're in the section of the statute is that commerce says that there is a gap in the record and under  primarily to find that the subsidy was a specific and provided a financial contribution that's the first line of what they said the gaps that they felt we don't know what the press were so we're going to find adversely that this program is specific i don't question they're filling the gap of the first two prongs of aletta subsidy is i question is whether or not there is a gap when you're looking at what is the appropriate benchmark against which to measure sign furnitures is a gap  by finding votes that this program is specific and that it provides a financial contribution they went yet another step further in appropriately to say now i want to go to measure the individual impact on fin the benefit of commercial reality but here where you have a fully coffee to respond even if it's simply unfair one of the thing to point out is when they come or says what they had intended to do they tried to say we didn't intend to apply other but what they did when you look at what they applied against the actual non cooperative response one hundred twenty four companies that did not respond to the questionnaire they use the rate calculated for fine french or and the a rate for those non corporate of respondents so it's a little bit tricky to decide what commerce is thinking when they do or don't you can't just rely on what they were thinking when they when they use these calculations it's clear that the use of fine furniture hitting sign turn if you're for something that china did or didn't do just because you can believe they didn't do anything wrong they did everything right and they fully cooperated said you i have that correct absolutely  why are they being punished for something a third party in this case to china the government of china why they being punished for something they couldn't control well as an initial matter i think this court has repeatedly recognized that if they are not punishment it's cooperation but more importantly to your question the statute presumes it doesn't presume it creates a regime in which in some cases cooperating party spirit the collateral subject of and i present tense for example though the importer cooperated under the statutory scheme that exists it was permissible to have that kind of collateral effect on the order under the theory among other things that that's sort of the only way to get to the it's interested in its industries particularly when we see that it apparently there is there's at least the suggestion here and allegations that they subsidize those industries so they're interested in their success and they participated should the government of china participated in the uk in congress investigation i don't know the government of china cooperated almost completely the only thing i gather they did not provide are good in lighting make up the gov china provided the various numbers of the various rates for the problems but they didn't provide any information about how those rates were set and given that this program was being investigated as a potential government subsidy the only way that congress could know whether this really did the subsidy whether it meets the requirements of a town or available subsidy the three prong requirements of the contribution spokesperson benefit was to actually look at the working papers and figure out is this a program that provides financial contributions it is specific to a particular industry and does it provide a benefit what if that information was available to each of the problems did their own thing a what if that information was not available in a usable or we evil form of the government of china and then what did we get well in that case of the government of china was required to can't provide you these and we didn't go into depression detail to to why that really is and i and i will note the no one has really challenge to the fact that the government of china didn't cooperate in this proceeding that's that's taken to concede on all sides so the question is the commerce is left with a gap in the it doesn't know whether the program is a subsidy it doesn't know whether it meets the three prongs and the only tool that congress has not only to build again but also to encourage cooperation is this perhaps imperfect tool of using a fag in the hopes that the government of china being interested in of industries will be encouraged to cooperate in the future  entity that was eligible for a separate could receive at the rate of a non cooperating mandatory respondents when it was understood that the manager responded in fact wouldn't be affected by the rate at all so so what what congress did was a calculated basically calculated hypothetical a pay raise rather than investigating the the respondents the response of the council in trying to cut to the chase what do you think is that reconcile the two opinions what's the principle the take away i think the principle is that when the congress had some sort of ability to create a rift or two to to figure out what the rate is without non cooperating private parties and that and i think that is not a certainly a reading that we would agree with but i would note that under that reading this case again falls on the key point you stopped because the idea is that have not yet been expressed or identified i didn't look i didn't see anything in congress's determination or in the cia these opinion which identified what our time and interests here at stake that you could say program should not be investigated so so the government kind of had some sort of interest in this program not being investigated and the other point is i think that up to vasco the more the government can pass the threshold of going ahead and using the n frame there has to be some kind of analysis or finding that in there that in fact the inference being used is against the interests of china and i don't think i saw any analysis on that score here before you can pass go and then go ahead and start applying that inference in making the determination which ultimately have the adverse effect on  allegedly subsidized by the government of china the government of china has some interest in this investigation it just takes a position as to what it believes commerce should and should not do and that position happens to align with the position of fine f for the follow up on that colloquy with a further question if i may do you disagree with the following proposition we find no support in our case law or the statutes plaintext for the proposition deterrence rather than fairness or accuracy is the overriding purpose of the antidumping statute when calculating a rate for a cooperating party quite the contrary applying an adverse rate  obstinate as we explained extensively below and as we explained in our brief here if a was necessary to investigate this program because we had no other way of filling the gap in the run when it when it comes to the first two pro cooperating party or why don't you do that i don't think it would have been fair at all because the trial court correctly recognizes when we're looking at these prices we don't know what they are the reason that commerce picked the highest one is not just because it is not a not because they wanted to punish anyone i provincial price of gas we didn't know i will also note that i'm really concerned at all about the adverse effect of picking on a cooperating party so that in the future there's no advantage to like it's not like we had various prices that we could have picked and we just picked the highest one we had of the reasons for picking the highest one it's the one that's least likely to be tainted by subsidies at the trial court correctly notice or what am i the least likely to be treated but i have to go on the high because the way the way the calculation of the benefit works if we take the benchmark price and we subtract the price of the fine furniture base from the benchmark not amount of money so the higher the price for with when you have multiple parties involved in trying to make a determination like this and you have some that are cooperating and some that are non cooperating what does congress to fine furniture we're fighting against the government of china so if you have by finding that the program that the government of china didn't want to to investigate in objected to us investigating and believed to the industry should benefit from without congress being able to look inside the program by finding that that program did provide a benefit and we presume that the government of china is interested in having its industries and that is allegedly subsidizes and having its interest free succeed and to promote a lot of sales abroad regardless of whether there's a subsidy program and then likewise they also are very interested in making sure that its domestic companies are not subjected to some inaccurate duties in in other nations including the united states and the united states government has obviously an interest here has to explain her pointed out this whole statutory regime is designed to ensure that that that domestic companies here in this country don't have to compete unfairly against merchandise being imported that has been subsidized by some foreign government so there's there are interest they're not controlling is the idea that they are suffering the adverse effect the implication of that is that somehow find furniture with a non cooperative party that was my point that they do the other issue whether or not their interests are aligne nothing to show us that they are and as i said earlier we can't speculate as to what the interests of china are just like or i can return to one of your issues i think it's very important to remember that there is a neutral benchmark available here there is no gap on the record for all of the available electricity rates throughout the entire country and fine furniture proposed an average of the race for the user category that is a business and and that average would yield still account knowing whether there's any time subsidies going on by the government of china in the sense we're in a black box we can't tell for all know the harness rate that congress alternately selected was in fact the least subsidized rates of them all we just don't know what what the little swimmers have done is repeatedly say that they found it to be specific to an industry and there's nothing in the selection of a benchmark from different regions to show that that that there is a specific subsidy being provided to the flooring industry i can look at what they're really doing is saying well maybe it's a regional subsidy but it never made that claim and so there's no rhyme or reason to this collection of the benchmark other than to punish i wondering is there any rhyme or reason in selecting a bunch of electricity rates that are no where we have no idea of what expenses there's any kind of subsidy that's infiltrating all of the rich and i think that where there with respect to a fully cooperative mandatory responded same thing i painted you're really raising two different legal theories even though you don't quite sell them out that way you're arguing on one side they can't use  all against your company but it seems to me you're making a second argument which is a violation of the ministry of procedure rag for them to arbitrarily pick the highest grade when there were other options they could have used for determining the benchmark is that i think most of them as i recall either one of those of those interpretations of print is nothing fair or accurate about what they did in this case that the cost of going through your company alone yes the point six percent those are the one point five one point five so point six is something once you know when six then you're excluded from the order and no duties are out and i'm not sure i understand your question those companies if they find hunch or go below demand us then commerce will have to recalculate to separate so most of those companies there may come before and afterwards to tires on it and so on this in that case it was an important trying to fill in extra information on the record but just because they were called cooperative in terms of voluntarily giving information is different from being required