fourteen fourteen sixteen forty seven and our shrimp trade action company versus united states they proceed i understand you want to split your time fifteen  cambodia and then included significant quantities from ocean but the official government production data from cambodia indicates that they produced less than four hundred thousand pounds of shrimp in the entire country during fourth two thousand and four and two thousand and five how do you explain the discrepancy in those numbers well your honor the to begin with there is only tenuous relationship it could only be tenuous relationship with those figures and ocean can because as we've also noted in brief is undisputed that i ocean king itself i think was only stablished in may of two thousand and five  case it is it is difficult perhaps to come to an ultimate conclusion about what the discrepancy there is but our view is what we're dealing with is a historical event you're dealing with al absolutely no shipments of shrimp from cambodia to the united states if there are no shipments it is self evident that there could be no concerns of transshipment therefore whatever concerns they may have had historically regarding ocean can simply could not impact these two people ours which are what is at issue in this appeal and that is one of our primary concerns is that the department appears to be far more concerned record with respect to the filiation to two ocean can so the question whether it's not an omission it's a it's a direct factual misrepresentation is it was it was a the statute but that's not missing information it's an affirmative false misrepresentation corrector are with respect to one discrete element of the record under the theory that congress proposes any time in which there as as a matter of reason that that certainly can be persuasive what we're dealing with here however is an anti dumping proceeding where commerce is required to have record evidence that supports its findings to say that it is found in misrepresentation or if if they want to allege say the respondent was untrue this issue the third country affiliate and then to use that alone as leverage to say notwithstanding the fact that piece of information has no impact on our dumping more calculations within these reviews we can disregard everything for example in make the argument that because this is a hong documents simply be a total or three absolutely not you know no could they be could they be they could not be they could not be your honor those are independent government documents issued by hong kong by the government this is  information being generated from their computer records is a standalone objective documents moreover as we've shown record in this case also includes a copy or one verification report during chemo or one commerce conducted and on site verification at hilltops offices in hong come in which in part they review these independent business documents the business license in the business registration so understanding as we speak today commerce is well established and explicit policy in non working economy dumping cases is that if the export work is located in a market economy location which they treat hong kong as a minimum margin kind of invasion on cookbooks right hypothetically right right your are right that would be that would be a find it and any finding that commerce and when you s legal argument your honor would be that there is no rational connection between a statement or a misstatement by an individual mr tow with respect of his own affiliations or his other investments in third country repeatedly states yes that he signed multiple certifications but that does not mean that they are now alleging that there is other information within those submissions it finds on truth or that there is evidence demonstrating is incorrect that we cited by analogy was but well i fit in from taiwan in that case commerce issues multiple supplemental questionnaire to science and at verification identified for previously unrecorded affiliates and at the end of the day what they did is they applied an adverse inference only to one of those four because they said this is the only company which is involved in any matter with subject merchandise let me discussing we're discussing specifically shrimp create committees three in fifteen fourteen it's page fifty three where they say well hilltop had an opportunity to submit  the ocean king misrepresentation it failed to do so and this is what bothers me despite having sought and obtained an extension for the purpose of doing that your honor again with respect with respect  or five we are acknowledging the fact that the record does not contain the in for nation regarding the affiliation in p o r six in commerce issues supplemental questionnaire to hilltop asking about its affiliation i believe this is the eight supplemental we submitted in response to that ninety pages worth of information answering all questions that the department had asked with respect to ocean in i'd i'm not with this maybe the government v as as you know in these cases very often time may be limited there may be other issues that you want to pursue but at the end of the day if you find nothing there's certainly no purpose of making concerns that congress had with the use of secondary information in this case is that if the information is coming from an earlier time period it may not be reliable with respect to the current review that is clearly of grave concern that we have in this case commerce is continuing to use one hundred twelve percent a rate that was obtained from the original petition in two thousand and three and their effort to corroborate that is to take a minute percentage of sales data from the original two thousand and three investigation and in doing so they are disregarding the fact that during people more than what is a data represented terms of volume though i mean it's a significant amount of on record they claim it is a significant amount of volume in relation to other exploiters i can't speak directly to because this is proprietary information it is certainly a minute percentage of the data for that one as has been discussed on the record this was a five year investigation there was a wealth of information what is now being focused upon is a is a handful of e mails not the entire record and our point there was that  that brief during the sentencing was not the conclusion of the court in fact it is notable that notwithstanding the fact that the government in conjunction with u s customs conduct it was five year criminal  at the end they declined to bring any transshipment charges against mr lynn or mr toe or any of the other individuals that were involved in this instead what they attempted to do is he's having reached a deal whereby the only charge that was that was leveled against mr toad was the mislabeling of fish they attempted to use this information in an effort to persuade the judge to give mr lynn a much stronger and harsher sentence and in response that the judge himself was asking a very obvious question why didn't you if you felt that this was compelling evidence given your record as a whole why did you not bring these charges in the first place and he found the entire effort as he said pretty thin could have been useful in supporting your case which is that the one zero rate wasn't submission corroboree new contend that your client made a request to provide additional market data from other responses i'm reading reviews under appeal here there were two mandatory response there was hilltop and another company called regal commerce calculated a full margin result for riegel the identical methodology if they used in an effort to corroborate his one hundred twelve percent rate using his two thousand and three data they could have used using the contemporaneous information in p l r court to determine whether or not that is a document and you're reaching hilltop we made a request for this information i believe your honor that we have raised the fact that not only did commerce use outdated information in its effort that plaintiff counsel or appellant counsel is making here contradicted by this court's recent decision in dung typee honey and to extent there is anything left over by the slightly less recent but still fairly recent decision had been applied to the chinawhite entity in the interim in that case actually it was only applied to the china wide entity and in the first couple reviews after the six review like the seventh and eighth and again was being applied then in the tenth year the rate had been applied to the chinawhite entity in every review in every segment of this proceeding up to and including the fourth and fifth interviews that are issue here and this court upheld that determination i but where in the record in the fourth review reminder terminations i was particular section i'm thinking of is it four zero four eight of the you are for records of four zero five eight  have you have and you have an uncooperative respondent and you're determining what the rate would be of the entire china wide entity all parties your agree that the operative the operative rate to be corroborated is not hilltops specific rate  but the rate of the china wide entity as a whole here congress looked and say you know we recently conducted a section one twenty nine determination in which we looked at the largest x single export or by statute doesn't address at all the question that your honor is raising which is whether if there is additional data from for example cooperative respondents whether congress has to rely on that date of but there have been a number of  older but is reflective of higher rates that are consistent with time at the time before commerce counsel counsel argument was look there are several companies in the investigation and we want to go want to fishing expedition to see whether there's anything that's helpful to us and all their data so in addition to the radar data we want  you release it out of those other companies what he's arguing now is that there was another man to respond in just one of the two review that that issue here the fourth review there's another mandatory spondon senior view that happens there's a number of reasons why that would be commerce enjoys particularly great discretion in applying the same origin to an uncooperative respond and they have they is properly employed as a deterrent to non cooperation so there's an there's we are in the may be some information out there that's pertinent that was not taken into account so there's absolutely no requirement for congress to use the freshest most pro respondent data now you know amy as mary wall congress can use the oldest  saying that are you know there are there has what are you sure i am saying that in this case it was entirely reasonable to use from that from to go from the fourth in fact review periods back to the investigation that's the same amount of time as the court recently affirm trying to tell congress how to do things you have to honor our claimed independence from china you have to accept that the ocean two year old data that congress can go back thirty years or fifteen years or six years and rely on that data and coding nor the pressure data because it goes back to this being the enemy why it incident would you agree that if there was does not exist in this circumstance there's no fresher and immediate there's pressure co operative response and this responded helps out did not cooperate at every turn the warning legitimate agency inquiries because you'll in denied the existence of their cambodian let's get back to to the corroboration and there's a reason for the corroboration well i don't believe that those two increase should be looked at in isolation in a mass i think the need to be looked at to get gallant did impose a commercial but the fact that they're challenging i mean you're saying that to the extent that there's any consequence for the misconduct it's count that nine percent because that was applied to the co operative response that can't be the standard the crime racial climate cannot allow you cannot talks about one of the concerns of congress has is that use of earlier outdated information may be unreliable because it's from a different time frame and as this court certainly recognizes commercial reality is just simply not that well your honor the what what the government seeks to impose upon us this burden is impossible to meet because by virtue of the fact that was a yes or no question there is there is the non market kyra there is the china wide r k and by definition the china like rate is never a calculated rate it is simply the rate they are signing which is the most adverse rate from prior reviews so they're saying where should we should throw out the market  chooses and adverse rate and if it is not from information that is contemporaneous in the statute says they should then corroborate it and the corroboration what we're saying has to be if it's going to take away or they can corroborate it among other things from the petition is that not correct that is that it is list of the individual sources that the s b a states could be usable however that does not always satisfy the concern about using red garden data right correct why is that unreasonable well to begin with your honor's is as we've shown red red garden itself received an overall margin of the minutes was your and so what they've done and it reasonable under certain circumstances for commerce to use a small percentage of data in order to corroborate the rate as a whole but it's on a sliding scale and c i t particulars noted that it's the higher the f a rate is then it seems reasonable that you should have a larger amount of corroboration so again i would say with the hypothetical and it remains on reasonable because what is attempted to do is take a minute percentage of red guards data that is not even reflective of red gardens reality rate can be punitive not just with what you believe is being applied but with the amount of other information that commerce is disregarded it can be punitive in the sense of what you are now treating