appearing before you want to have magnolia metallurgy and i'm accompanied by my partner tony burke we think this case presents to the court for assurance whether the binding decision of the court and a casteel indeed  still buying whether reliance on another determination for another period insulates the department of commerce from an appeal of its rationale for a legal finding whether a finding of disproportiona your reviewing your and the order requires you is different from an institution in the first place is the language changes only in the sense that in a investigation you have a and in its prospect of character the investigation doesn't in fact set what do these are to be collected and the result of a first administrative review could be that no duties are to be collected that commonly happens  with the changed circumstances or are not in the language of the statue with respect to this question but there are two issues here one is with respect to evidence that which i think is what you may mean by change helpless to do that what i'm saying your honor if you stupina moment but what i'm saying your honor it is that the commerce department always makes a new finding of specificity and has done so in all of its determinations in this instance in this different review the problem is not so much on the evidence but on the law the original determination was wrong on the law based on the decision of this court now if you excuse me just a second notice of such review in the federal register shall review and determine the amount of ending that conner available subsidies that's a new finding in determination of the amount of a subsidy that has to be a subsidy to determine an amount and the commerce department has that the commerce department in its predecessor had found not count available but now found countervail a bill for the reason of disproportionate share and the disproportionately large share in the commerce department tells us is contrary to law the problem here in the question you raised about change circumstances or new evidence to be presented is that there are two prongs to the standard review setting aside that the cia team used the wrong standard of review here and and talked about abuse of discretion standard review as an administrative review standard review is substantial evidence and otherwise not accordance with law the notion of bringing new forth new evidence applies only to the first prong as to whether the substantial evidence but here the error is one of law all the a case deal test was rejected by commerce says case but then you have to go back to the original determination which was appealed to nafta and that was the end of well it's excuse me wrong but it's not the end of the nafta has no presidential authority and the nafta panel in this case as you may have observed was divided into two and one and the one that then constitute the majority were cit government can back always under nafta to go to a nafta panel any party chooses to go to nafta is removed to nafta so that wasn't an option about going to the court we ought to hear to come to court and we persuaded the government convict to stay out of the case so that we were obliged to go to a nafta panel secondly the nafta panel has no authority of any kind with respect to race due to kano or deciding a question in a definitive way this is an exaggeration of the nafta panel's authority surely it would be subject to appeal now instead with commerce that what we've decided that already it was already decided in some other review we're not even going to articulate the rationale but the rationale was contrary to law so if they refer to that review entitle to then say what did you say in that review that reduce rationale is contrary to mining decision of this court so if you adhere to the proposition that it can't be reconsidered then you've reversed yourself then it casteel is no law rebinding decision and the commerce department has made nubile about what constitutes a disproportionately large share of a program in which in this case the shares were exactly the same the company received exactly the same shares every other company for example before this court the inverse situation when commerce chooses not to examine a program again when it's found it not to be countered built in the past was was found to be reasonable by this court and the inverse of that that when something is found to be counter  vailable and then when in a new period or just the only changes it's a different year but the same issues involved and the same the financial contributions from prior years are at issue similarly it's a reasonable application to say that binding on a future proceeding however and only insofar as the issue that was specifically involved in that nafta proceeding which is whether the new shipper of these finding of de facto specificity was supported  reasonable exercise of commerce's discretion was proper that that issues off the table they're looking at well this is a different year we have two thousand and three entries but if the same issue was involved from before and they don't present any new evidence and they haven't point to any new evidence that they tried to submit here that might have changed things they point to a lot of swan from canada review by commerce where they said we did find new evidence and therefore we're going to revisit the in economic conditions or in their business that would be classified as new evidence and they haven't done so  that because they're the largest employer you would expect them to receive more money and that's still not just or that one they found that on both a relative basis and an absolute basis they received a larger share but that wasn't the exact language that we were quoting  such an appeal places before the courts precisely the same substance that could have been brought there by appeal from the original order but asking to review it on the strange one step removed basis of whether the agency decision is not only unlawful but so unlawful that the refusal to reconsider it is an consider the facts that were before them in this period of review to see if they were different in any way from those in the earlier period there was no new evidence presented therefore the evidence from the earlier period was view i don't understand your answer i hypothetical you're posing the court would have to look at whether commerce abused its discretion of your view on an abuse of discretion basis whether to reopen therefore they would have the discretion to reopen but it would have to be an abus do just the opposite and therefore congress is administrative decision in which it laid out its reasoning and reflected congress policy therefore is what they would have to find to have been incorrect based we made a finding in the earlier proceeding and now they're seeking to have a say that that earlier finding applied the same benefits same years were just amortizing it over to useful light and they're saying for this two thousand and three period we're going to say that you have to reinvestigate out as they would have to reinvestigate every countervailing subsidy and every year potentially that and commerce said that given our earlier finding on that we any evidence of this they did not their statement on page fifty three of the appendix was their statement on the issue which was it's just that they don't not revisit absent new evidence and certainly they didn't find anything that would change their mind given what have to send it back to have an exercise i was right we would say no because they had already made that decision during the new shipper of you and it was the same issue involving the same subsidies that was at issue during the shipper view that they were being a the program and its doing a review the purpose behind this is that i hate the little three really sorry the requirement is because programs grow and develop and there are more participants in this instance although this was a successor program it was also a new program and it did grow participants over time and that growth in participants necessarily meant that the share that magnolia received which was already is involved recognized very very small further diluted it got smaller and that's a new fact and that's new evidence and the commerce department said it had discretion over that part of the statute in didn't have to consider the longevity of the program notwithstanding the command of shell which you call it was not yours or there is no no we've we've never conceded that there was no new evidence your honor because we've always said that the longevity of the program was a requirement of the commerce department to consider and it failed it refused to consider it and the reason you have to consider longevity the program is because it changes the evidence we've also always argued that the proportion changes in the period of review because the alleged benefit in the period of review was the amortized amount and then in the period of review there are different recipients of benefits in the program getting different amounts and if you're determining that you are the disproportionate receiver recipient of benefits in the period of review then you have to determine that indeed you are disproportionately receiving the benefits that's a determination that depends on new evidence and we ask for that to be done in the common so that's why i'm insisting that there are two prongs here both in terms of the evidence and more profoundly in our view would terms of the law that you're you're still talking about what happened in two thousand and one no i'm simply in that countervailing subsidy it is our view and it has been the department's practice always to fine to make a finding as to specificity in this case it said our rationale is a prior rationale on which we're defending we've said amortization was correctly a portion in two thousand and one then is it really of the nature of new evidence to say that things have changed but it was correct when it started yes that is as in dumping reviews in a period of review you may find that the price of changed and therefore there is no net dumping there's no dumping to be found here to you can find that there's no subsidy in the life's wine cases the department focused on the two futures test and in every administrative review to reexamine to how many users there were and what the universe was to determine whether there were too few users and did it every time and the same proposition is here in the administrative review if it's arguing that there's a disproportionately large share of benefits in the period of review it has to pay the stamp wish but that's the case with the facts that pertain to the period of review that's different from the period in this case two years prior and this is sara lee different when there's a new program but what you're asking would be that retrospective levy amortization schedule was wrong and if in fact it were correct and we readjusted it seems to me that it's unlikely that they knew it would come out with a different net result that then it's at now no two different proposition i'm sorry if i'm being too soon this argument has nothing to do with whether the amortization amount was correct in two thousand and one it simply says whatever that amortization amount is in the period of review is the reasoning as to why there's no new evidence our position is that there is necessarily and always new evidence where there's a new program and that's why the statute requires that that be examined as to its longevity and to its end to the changes benefit it says is disproportionately large in that so we say that has to be measured if you reject that argument and said we'll just go with the total amount of the alleged benefit from the beginning prior to amortization you still have to consider what that total amount looks like in the period of review with respect to the program and the other users and that's a question of is a disproportionately large where in a growing program it's always getting smaller which would be in the mind of anyone who sets an average sation well one would one would hope but but therefore what i'm suggesting is that if you relied only on the proposition that you need new facts which is only one problem of the standard of review then in an instance where there's a new program and it's changing you always have new facts necessarily when you're examining specificity with respect to the to few users test or the disproportionately large test and then what we say is more profoundly a problem here in which i think judge dicus has recognized in his questions more profoundly there is a violation of the law here that is the commerce department has reversed a case deal and then says and we don't ever have to admit it or go back to what we've made our determination if you were race if you were suggesting judge newman the nafta panel decision then what's the basis for saying that the commerce department can make a determination and never has to revisit when it's legally wrong