right right this case that we believe is controlled again by don who because an s k after the december zero in decision had not been issued yet the proposal and second of all the issue in s k f was whether it's reasonable court did not consider the december proposal to eliminate zeroing the case was argued and briefed prior to that issue and the decision came out slightly something like two weeks after the december proposal but the court made no mention of it in fact it says the w t o decisions had not been implemented yet so we believe the court did not take that into account four years ago in february two thousand and seven the united states pledged to interpret implement the decision of the w t o the zero wing in an ministry of review says contrary to the u s obligations the decision to eliminate zeroing therefore was long ago made by the executive branch of government and t n is not aware of any statements to the contrary since that decision in two thousand and seven additionally as i mention in december two thousand sent ten the commerce department published its long awaited proposed rule to eliminate zero in in administrative reviews and the notice specifically stated that i'm not sure what the point is here we know what dong well the question is whether the form of relief is available to you in this case but apart from consistency or how is this case different for us that that is not the only methodology for implementing the methodology that's noted in the december proposal so there are there are a number of statements by the us that say one thing and they do discuss u s law however the justice department has not recognize those in this case so we believe that they should provide an explanation of why their position is different than the u s government it represents are two there are two issues related to model matching is case one is the model match methodology that commerce used that was changed in the fifteenth review as you probably are aware this is the eighteenth review of this case in that in changing it commerce has made a statement that the new methodology is more accurate than the old family methodology and we believe that there's been no evidence or showing of support for this statement is simply a statement of accuracy and just by stating it's more accurate is just does not mean it so because the criteria used in the new model mad method math matching methodology is looser then under the old one so by definition any of the matches that result from the new criteria must be less accurate then under the old one in the old that you don't care for that evidence  naturally if you are required to match characteristics exactly then anything any match that's based on less than those a characteristic such as the for use in the new methodology will be by definition less accurate even if the original methodology was an average i guess of the family members that matched those criteria commerce says that just because we we can pick one model from the new methodology picking one model is more accurate than the average of the eight but that again based on the logic of the methodology can't be so because if you're averaging eight very very specific matches commerce made the statement that it is more accurate and that was not that's not they didn't have to make that statement they could have said it was more reasonable or it is reasonable interpretation but their basis for changing one is that noted that there were compelling reasons for the change which is the reason commerce gave as well so the decisions were based on whether the compelling reasons existed in the court said the compelling reasons did exist because there were technological improvements and because if there is one bearing chosen instead of the family that status has a statute of more price to price comparisons but there's no changed just commerce through the word oh yes and it's also more accurate but that's we already we already said it was ok for them to do it that way so why should the fact that they said yes and it's also more accurate suddenly make it not ok well because the the reasons that commerce gave were that they argue more accurately last time they argued all the other reasons and we said those reasons were adequate so why don't those same reasons make it equally adequate here regardless of whether it is or isn't more accurately well because we believe again one of the reasons commerce specifically stated for the change that this is going to produce more accurate matches and again there's a statute at the basis of this there is a preference for identical and then similar similar magister based on the physical characteristics but when you're mashing fewer than eight physical characteristics it is by case there's another aspect to the modern match methodology which results in which is about the tiebreaker methodology used when there are ties so if four of the characteristics are matched and the remaining set of models is a group of models from which commerce has to choose a single most accurate one commerce breaks the tie by first looking to the level of trade and by second looking at the time of sale third if none of those produced yet a single most similar model commerce goes to the different adjustment which is related to the physical characteristics of the product we believe however that commerce should revert to its original methodology different then it's then it's thrown out of the pool but commerce then uses differ then it goes to the level of trade in time of sale and then different dance with elevating the other two characteristics of the sale which had nothing to do with the characteristics of the product being sold or matched above again the use of the different yes the different was used once were suggesting that it should be used a second time to determine the single most similar match rather than coming they they come into consideration if if the one says the single most similar product is chosen because you can choose the single most similar product among different sales until you've chosen the product that you're looking at me we can't look at a range of sales until you know which product sales you're examining so they do come into play the statute does require that the sales are matched hopefully at the same level of believe as we stated in our recent the first case was there's a faulty basis for the case the argument there was that by using different we're going to narrow the field but there is no now running of the field at all it's simply the field is set now how do you choose the most accurate bearing out of that field so i'm not sure what the logic was behind the argument but in the case it says that was the basis and we don't believe that's correct at all it's not an understanding it's not the correct understanding of the methodology so statistically biased practice of zero and that's the header then next page it points to in fact conducting anti dumping investigations us is already abolished the practice in zero eight and then it goes on to say it should likewise for administrative review so why isn't that adequate to raise this issue very much identical to don that for the dog who briefs i don't see anything more than those statements and well respectfully the argument that is making is that the clerk should remand this case to commerce to allow commerce to decide how to implement the b t o decisions that issue has been addressed repeatedly not to me because there's no language in this that explains that because of this particular site the difference between administrative fees and investigations zero is more appropriate one and not the other well and that's the critical link that's missing this just paragraph articulates random differences without explaining our timing them to the development of zero and practicing just and what what congress is saying here is that there are different different purposes in investigations in a ministry of the like to if i can continue what that purpose means is that when commerce is doing a comparison a comparison between normal value an expert price in an investigation congress normally does what's called an average to average comparison and congress does not do zeroing in that type of comparison now in an investigation congress can also do what's called an average transaction from paris and you know we're just talking in investigations right now and if you look at the u s steel case commerce noted well when if we do an average of transaction comparison we are still going to use year when even with an investigation so even an investigation you have different types of comparisons a commune made the normal comparison commerce is is not doing zeroing another type of comparison is doing to the law and if you because the type of comparison where congress is doing the zeroing is a comparison that's designed under the statutes and to get what is called mass dumping and as this court has noted in the us still case one of the reasons presuming is to get it and ask dumping and that comparison in investigations than ever should transaction comparison that is the exact type of comparison that commerce normally does in a ministr yes i would go further than that your honor i would say that under s k f to a quote from s k f and this is a decision from january of this year the only way one can reconcile dong two with the s k f decision from a few months ago is the fact that in dungaree there was is certainly a reasonable explanation it's an explanation based upon the differences between investigations into ministry of abuse and the type of comparisons that one is making that's a reason the explanation of the standard of review setting aside s k f of course under zero wayne in a rational reasonable way so that we can understand from the agency's perspective that there does exist a reason for it well i think certainly if one looks at this explanation we believe it certainly provides enough information to meet that standard so look at the u s steel case as well where this court discussed the very similar issue in the context of investigations but respectfully again commerce again pointed out the differences between the two and noted that it makes different compare different types of comparisons in a ministry of reviews as compared to investigations any further points that i've made i think are certainly reasonably discernible from from the language that's used in the issues and decision and of course this court is held in the past that that if commerce is decisional path as recently discernible that that's sufficient under the standard of review turning as well certainly commerce already does i think that's a misunderstanding that entity and has commerce before it even gets to the tiebreaker has already determined that these models are identical matches for four characteristics or within merchandise not identical merchandise so it is it is considered and there is nothing in the statute to preclude commerce from considering the level of the trade in one of the sales or contemporaneous in fact as we noted there are other parts of the statute were congress again all of these sales are already considered similar under the model match methodology they've already met to come the statutory definition of similar merchandise before we even got to the time break or so so commerce has so it doesn't matter  well it's obviously intended to be a tie breaker but the point is that all of the sales are similar we've already met the model match methodology congress has met the statutory requirement for identifying similar merchandise about the differences between reviews and investigations and by that as relevant to the question that is before the court on the justification for zeroing and one thing that i would like to say there is that i mean maybe the disc maybe the explanation is in artful but i think it does a good job of saying that administrators are views about assessment of duties and if you go back to the decision of two thousand and four it talks about that too and it says review that the that is done now which is not really entry by entry anymore because they use computers and averages and so forth they mimic that process and so that's what the court recognized in two thousand and four this zeroing process reflects the same same issue well i'm hoping that in danbury you will not have a different result i mean are you said and done was that you know why should we send it back so that the two cases will be considered together and they can come up with whatever explanation they want to first i would like to say that regarding the tiebreaker methodology the government's argument is that because all tiger methodology is maybe yield a different result any one will do and that's what they made in their brief and i didn't hear them to say anything else but to say that of course our methodology yields a different result but there is no explanation for why their methodology is reasonable second who is not an unusual case who is exactly what happened here and it's probably exactly what has occurred in every case since the us changed its policy in investigations in two thousand and seven as this court probably well knows because there have been many of those cases the difference to the government discussed related to the calculation and in not satisfactory i think the government has always said that it's simply that they responded to their international obligations and additionally in toungoo the argument that there was a difference was made and rejected in fact the court in dr who said this court has expressly adopted the position taken by the government in earlier cases that there is no statutory basis for interpretating one thousand u s c sixteen seven hundred thirty five differently in investigations than in a at this point unless congress provides the explanation it's not it's not reasonable ok so the government's theory is they provided the explanation here even though they don't but it's still not a reasonable explanation because methodology is exactly the same all it does is when the calculations have been gone through congress is calculated complicated programs and there are some differences between investigations and reviews in certain aspects but after pages and pages and pages of  program commerce sums up each individual margin transaction and then when it goes to take a weighted average it simply ignores the negative margins same investigations as in reviews so that aspect that that they are counted in the denominator but i believe in the case that was there was very specific testimony on this it is quite commonly said that they are set to zero but there's no actual setting to zero they just do not add them up so it's comes out to the same but they just do not add them in their limited average margin calculation so that particular part of the program then very very slim part of the program zero going is one line in commerce's pages and pages of pages