believe the the whole issue was what to do in a situation where the chinese government fails to respond and therefore it's impossible to determine whether the program is an export subsidy a situation that they've dealt so what we're saying is that what the court of international trade did was improperly direct commerce what to do here by directing co  if that determination is reasonable consistent with the statute and based on substantial evidence yes ok that's a circular argument from my viewpoint on page twenty of the blue great you argue that this court applies our deference to commerce is raise more an interpretation of its own orders and then as we should defer to commerce is reasonable interpretation of its own the diamond saw blades the it was not a regulation that was being targeted it was the final modification which was published in the federal register but was not regulation and so that that final modification is something that commerce authored and therefore this court decided that it was appropriate to defer to commerce as the author of of it's entitle to take deference on its interpretation of that and of the law as to whether or not it can apply adverse acts available to determine that the program is from making that determination and it was prevented from determining whether the program was an export subsidy where government where does the decision say that you mentioned that in the opening three hundred and twenty two question of whether individual individual companies use the ex im back so the department states that it did not make a determination that the program was an program provides a subsidy contingent on export performance this is good enough and i'm getting a little lost how was commerce able to impose a countervailing duty without making a finding that there was an e that the program was used by the response and that because of the lack of information from the government of china a they determine know if the government of china does this is the whole point of our appeal is that if they don't receive the information to make a determination of whether it's an export subsidies or not they can apply  export subsidies without an issue well if your honor it was certainly an issue and that it was one of the main subsidy programs analyze but it was there any issue that the chinese export import bank provided export subsid determination and therefore because it was unable to make the determination it was not dumping duty with the kind of feeling good and that's the proper position because if there is an any incentive for the chinese government ever to provide information regarding this program and the entire purpose of facts available to induce cooperation is undermined by that decision will we'll never find out what the chinese subsidy program is information available but again because because the government china failed to respond the congress clearly did not make a finding that it was an export subsidy for purposes of this this matt interim layers of plastic and did you challenge converses definition of laminated glass somewhere in the record your honor i think the fact that there is you this is mr kurland good morning your honors and may have pleased the court our remarks are addressed slowly towards the module glass issue and in that regard commerce is determination that the appropriate surrogate module glass was the tempered glass or good value rather than the module i'm sorry the laminated glass or good value should be affirmed by this court because it is supported by substantial evidence and otherwise lawful as record did not support this idea that treen is glass was both a can to laminated glass which as your honour's have already noted the record indicates has additional characteristics in particular the world customs organization explanatory note indicates that it's made in sandwich form with one or more interlaced there's a plastic between two were more sheets of glass that is not what the evidence indicated and in particular treated glass may not be layered so that should be the beginning of the end and the end of it they have acknowledged that the glass involved is not layered and no one had to answer your honor's question to no one had made the challenge that this world customs organization explained terry no it was inaccurate or wrong it is that's a given in the record and as far as i know was uncontroverted i think we have one additional thing to say one or two additional things to say about this idea of this statement in one record document which i will note is not treated as record document  specifically says that thin film modules may have plastic as a front sheet and so there are several flaws there the most direct of which is that it's referring to thin film  statement about the thin film modules containing plastic was not a statement that solar world has pointed to at any time in the proceedings either before commerce or the trial court  before coming before this court and i think now they've seized on the word plastic to say to try to kind of shoehorn it into this idea of interplay of plastic and glass we notice there's an exhaustion issue there but i think even at a more this joint entrenchment quick question the palance argument i'm sorry i'm going to be off that in question i just want to know what congress is positioned as seems to be at least premised on the idea that you don't always have to find that there's an export subsidy in order to impose a countervailing duty right is that this congress believe that general from the attorney general is to to speak on that issue i guess i can what i can say is point of clarification is that countervailing duties are opposed imposed on different manners of subsidies that the last point we were going to make on the module issue is simply that leaving aside kind of exhaustion and waiver concerns if your argument before this court is that commerce heard because it failed to consider evidence that before it it seems logical and appropriate for the court to demand that the evidence you're pointing to be evidence that you as a party  inappropriate given that they specifically point to this reference to plastic now it seems inappropriate to then claim that commerce didn't address that specific language when they themselves did unless the citing and attempts to characterize the final modification as analogous to a commerce determination the final modification announced an agency wide modification to the methodology program and in that case the petitioners argued that they should not offset the expert buyer credit program because let me just ask you this question has anybody ever suggested that ex im bank support is  they were making a decision based on specificity based on the government has told us that everybody in the countervailing duty proceeding simply assume that ex im bank subsidies are export subsidies is that correct i think that that is the assumption is they are not explicit though they weren't making even had to make any determination about whether it's an export subsidies as everybody assumes that was and and we cited in our brief  original investigation commerce explicitly said in the eighty case they said we have to make this offset because it's an export subsidy and so our us selling price calculation they went back to the most recently completed segment of the proceeding in contrast investigations commerce uses the companion coincident investigation for making the including the department did not make a determination in the c v t investigation of certain solar products in the p r c that the export buyers credit program was an export subject rather the department's determination to countervail the program was based on facts as available with an adverse inference as a result of noncooperation by the government of china and the department did not make a determination that the program in question was contingent on export performance right  both companies used this program during the period of review we find that financing from the ex im bank under this program constitutes the financial contribution with the meaning of the act we further find that this program is this