commerce selection of the ninety one point seven three percent china wide rate as the adverse effects available margin of flexible to respond and a foodie in the final results of the first  delete the proprietary information and if there's numerical information it's usually range within us or minus ten percent of the realizing it though is that there's nothing in the public versions that would allow the  their fixation no we understand that there was no verification and the fact that we withdrew from the case and prevented verification is reason for the application of facts available and the adverse inference specific we recognize that there's going to be a punitive rate applied to the food the only question is is the china wide rate the proper rate because there's a lot of series of cases from the lower court a court of international trade that says when a company or when the record evidence shows that a respondent operates free from trying is government control you should not get the china why rape and serve but i understood this to be simply that something that i don't think you can you can test tell me if you do you have the burden to show a foodie has occurred to show that it was free of government control once you left the proceeding the evidence remaining in the proceedings the did not allow commerce to conclude that you were free of government control or more precisely did not allow commerce to conclude that you had met your burden of a stablish in that because even a bunch of necessary information that remained in the public record a determination on verifiable information that you were free of government control they do not say that what the what commerce said was the department does not have any record evidence upon which to determine whether the both food he is eligible for a separate rate for this review or just as a food he has not demonstrated its entitlement to a sceptic right i mean those two things it seems to me together say just what i thought i was reading it to say they say there's no there's no record i mean i'm thinking yes there is record of and there is red evidence to do what to to for you to meet your burden on verifiable information that you're in separate right now i don't read it that far because granted there was no verification in this review however verification is not necessary in every proceeding verifications are mandatory investigations and they are mandatory in ministre to reviews every third time wasn't was not a factor terminations of commerce that there was you know adequate evidence no this is pretty clearly implicit in that to mean for us to determine on the basis of evidence that we feel comfortable relying on to make that and then i make that factual determination by the looking at the evidence i am saying i want to  go back and then to look at the public information that remain on the record and then make a determination they cannot just say there is no record evidence when there is record evidence when with when a foodie withdrew from the case we also asked you destroy all right harry information and congress did that and on october fourth they issued a letter to us saying we destroyed the information as you requested the other parties also destroyed the information and then they said  of the inability to verify goes to the application of facts available and adverse and the adverse inference it does not go to the altogether finding the factual  never made a factual left left in the public record so that tells us any well i can tell you they made a preliminary determination ok based on what we submitted which included proprietary in public information but if you look at their your actual determination in the preliminary or terminations there is no reference to proprietary information it was of the determination was made in the federal register notice there was not a separate proprietary memo that they refer to so all there did their determination was public and then the information that they referred to in that determination which we demonstrated on pages i think twelve to seventeen  i'm sorry when they made the parameter termination yes they did do a margin at that but they also made a preliminary determination as to whether the company was eligible to be company it's a separate company rate right because we ha the margin you know we walked away from it we couldn't catch support but but again the determination as to whether they were eligible for the separate company right they made with terminix based on information that was given right that then ultimately couldn't be there i mean it is correct but the absence of the verification our you know prevention of them verifying information that goes to whether there's information in the record that shows they are eligible human though they're going to get to the pen a penalty rate there's they are entitled to a rate other than other than the china wide rate and there is there is a series of cases in the in the lower court that states when a company is subject to adverse fact velo if the record shows that they are free from government object to cover saying that the countrywide rate applies now because that's what we have here isn't it and then i think so because we did not permit verification of it but the information is still an administr hundred seventy seven and the right and they could do that but for them to do that they have to make a decision they have to couple first you know they did not even mention those statutory things in their decision they did seventy seven right in their face at page thirty and then they start their findings on page thirty one and they use all of the language that was wonderfully but look at the decision i mean they make three  areas where they actually make a determination there's one on the first common forty nine zero eight under changes since the luminaries all started however we no longer find the both would be eligible for separate of saying here is a saying what you in effect what you do in fact say in your brief doesn't appear in the commerce decision namely here are specific items of information without which we could not possibly find by foody free from chinese government control and once we don't have those it doesn't really matter what else is there because without those we couldn't reach that decision but you don't but congress doesn't make specific findings of the sort that you set out in your brief what's your answer to that that's correct your honor what congress did say however was that i threw the what was  disregard all the remaining have and apply whatever facts may be available and in the case of the separate risa terminations that there's no evidence or evidence can't be relied upon because amongst other things it's not verifiable a to say that when there is omitted information or you significantly impeded you can ignore all of that party's evidence but rather as i think it's actually much more natural under the sasser tory language you can rely on the facts still available the facts otherwise available otherwise their meaning not tainted by the omissions or impedance that would include some of their information and then he says you can drop adverse inferences in selecting from that but not simply and absolutely say whatever that party did are wrong therefore nothing that party has said including assumption isn't there a gap that congress would have to say on this separate control separate like a state control question here are some critical facts we simply cannot verify including facts still in and congress doesn't say that congress really cannot ignore reliable verifiable information but including from the party that correct but in this case the critical information that was necessary to determine in particular the de facto ownership of the company was simply not there and whatever remains of the record here i think provide that distinction because in that situation there was a determination based upon evidence that the particular company was entitled to a separate so that first question was answered and then the second question was what the proper great and the tray court said you can't use adverse facts you can't with respect to what the purpose of the particular margin is if they have proven the first question but here we never got to guess that question because the first question are they entitled to separate they simply didn't meet their burden of proof in that regard so the presumption goes back to their part of the trying to wait and see and subject to the trial my martin it's not the case that commerce selected the china wide margin as an a f l great converse of lee said you're part of the china white entity subject to the china was margin and i can ask you this question i notice that this particular proceeding because it's an administrative review under sixteen seventy five comes under a particular standard to review provisions that restricts our review to substantial evidence it accords with a lot but doesn't much authorize us to  is that we strip that fact that we're under a particularly narrow standard of review affect our ability to say commerce really needed to express some steps that it left out of its of its opinion and i'm not sure that there's a distinction your honor i haven't given it a lot of thought but generally speaking i think we we mention that congress followed as recently discernible then the court should be feel free to affirm that decision and we think that the step here finding that they significantly impeded the proceedings finding that the application of facts available i appropriate finding that they were entitled to not entitle to a separate and then subsequently what the appropriate china wide rate is which again i don't understand the appellant to be challenging as i mentioned earlier this to cement into the court and we probably just sixteen and seventeen of our briefs and as the intervenor mentions on pieces nineteen of twenty there are critical pieces of information that are missing from the record particular with respect to who the individual ultimate owners of the company are that information and information that commerce needed to reach a determine nation as to if there's any information on that public record that would that would lead you to lead to the conclusion that that they were government control gaps in the in the record that would allow congress to reach that reach that determination and i think it's also important to point out that i mean to the extent that were that's how i may be suggesting that congress could discipline look back to the yes you can apply an alternative rate but you don't necessarily jump to the china where great and one is in to be clear again i think it's a two step question the question is are you  chinese phillida foody chose to withdraw from the proceeding and specifically refused to be verified at that point all of the information on the record is unreliable not only did a phony remove from the right of the business proprietary information which there obviously cannot be used on results but the public information that remain on the record that respondents are not allowed to remove unless remain on the record as unreliable the department intended to verify the refuse the opportunity to verify so that public information cannot be relied upon for any purpose so consequently this is a record that have a monumental gap there is no information concerning eligibility for separate because the information that remains on the record is unreliable information here's something that set the public information that he wanted the a p did to send him and congress to look at and want us to send congress to look at that all of that is tainted by and in fact the fifth corps were to re with the footie and rule that the department of congress should look at the public information that remained on the record that the the result of that ruling would be that a respondent could come into a proceeding participate for a while pull out refusal to verify is the same thing as failing their failing verification so the public information is on the record that could not be verified as for all intents and purposes information that was not verified it fully failed verification by not allowing there to holes in the record and say that the responses i'm coopt of and we have this difficulty and that difficulty in this case that there was really no record of there is no record on which the separate determination can be made and the department stated that repeatedly  and in this process and that was to say there was no information on the record available for demonstrating eligibility for a separate at a different point of phony asked the court to send the matter back to of eligibility and whether or not a different way of a rate should be applied doesn't dispute that it is a response that merits application of totally f a but it says ninety one point seven three percent rate is inappropriate pick a sixty four percent rate on bail is not arguing for it he shouldn't and it would never be applied so what is left the ninety one point seven three percent totally f a chinawhite right there is no other rate out there to to be applied a judge must grant below the notice of fact that the food he has argued for the application of a different race but it didn't identify any different rates it didn't identify any different rates because there really aren't any other rates so we even where this manager be sent back as it you didn't propose anything judgements present was right you didn't post propose anything below it was telling the app and from your your brace up here you're not proposing that there is an alternative available of them obviously that is the department of commerce job to come up with one i could say you know if you going to ask me but you know no one's going to take what i say as but you can take an average of the ninety one and the sixty four and that is you know because mr denning is right you know you're not going to use the sixty four percent rate because that was cooperative but if you take an average of the that rate and the ninety one you would come up with something in the middle which is higher with this  but you'd be the first person to argue that if timers picked the right without any evidence to base it upon it that well they have cooperated and then they will go through their cooperation exercise they believe me they come up with rates you would never information to come up to me to come up with that rate and yet all of the public in the nation is unreliable not the rates that we're asking no one is going to use the  information that we provided in the first review the numbers as a margin those are out what the department of commerce can do is select a rate you know and basically they have a ninety one point seven three rate which is their default rate which can be used in server will be used in most circumstances however in the unique circumstances of this case where we say we have provided sufficient evidence to show  operate free from government control you cannot use that rate because the line of cases you know king down burger you know the lunch we went through in our brief you cannot use you cannot apply the china white rag to a company break even if you need to apply adverse effects of a deal if you look at the you know the six or seven cases that the lower court has applied this rule it's similar to these cases these are case these are not cases where somebody has refused to participate at all these are cases where people have been participating they were anticipating good margins but some terrible disaster happened either