it please the court on good morning my name is david craven i am with the law firm of ritalin ritalin craven in chicago illinois i am appearing today on behalf of junction johns to john hiatt chemical not i do not specifically recall that decision well it's a decision by the group of national credit where they rule distinguish this case ruled that it was not permissible in doing coming up with a specific way to use adverse facts available with respect to that calculation and i'm just i'm wondering is your argument here that because actually they know your honor i don't believe that in fact would have been are we might have made that argument had the issues been before and that decision came out before we argued this but we did not object to and we never raised before the court of international trade the issue as to whether using an average of a surrogate a f a and a zero zero we did not challenge whether or not that was an appropriate manner for calculating the separate issue and since we didn't raise it to your honor of that we don't believe that it would be something we would raise here well but if you're not raising no your honor i think our position our primary position is that the us price was agreed upon by all parties during the review itself it was not raised in the quarter international i understand putting putting that aside on our position is that when you are looking at a calculating your pseudo f a rate this is not the actual f a rate in that there isn't a f a rate that applies which is not the challenge it and so it remained at the rate originally said during the review so what really how should the rate for your client be calculated in the rate for our needs to be calculated under some basis that is reflects commercial reality there were it's difficult for me to go into this in open court your honor because most of this is confidential data of third parties but there were two non co operative respondents that submitted all quantity and valuable information one of those two respondents did not itself submit the information but its information was submitted by importer  fashion which did not comport with our own of commerce regulations and in fact that information was ultimately placed on the record by commerce in an extraordinary fashion the second quantity in value information was placed on the record probably that company ultimately determined not to cooperate but the department selected only one of the two non co operative is there some reason we can't use the names of these  the information was given by the order the information was the data they used was provided by the importer who refused to disclose publicly his manufacturer commerce said you must disclose the manufacturer for us to make it was spawn of selection the foreign manufacturer through their importer said no we refuse to disclose our eyes and what happened to that so that data was that data was ultimately not used in the honor is that there were multiple data points submitted this particular data is disproportionate it bears no relationship of any kind to the price  other any other data record it doesn't the way or the other the data from the other party these were parties that were not the subject of investigation i understand correctly including your own line well no your honor the other non there is another similarly situated non cooperative respondent semitic you indeed and congress did not use their data but they were not a mandatory respondent read a word every julie designated as a mandatory respond and that's when they reflect have some grounding in commercial reality that in such a case to question the fact that when if you have an import of this or that supplying it it's data i mean who is in a better position to know what constitutes us pricing an import let's go back a little bit yes if your main problem is that that congress wreak recalculated us price all together yes you're you would have rather that they not touch it well i believe that they had no legal authority to do so and if yes you to reconsider the separate amount after examining the following issues and then the list civilization but you didn't object to that remained at that point in time that was ok with you yes your honor those all the issues that are  rated relates to normal value not the united states progs why should we find that commerce was was wrong in recalculating your separate rate among doesn't that involve rate price to a person in the have the potentially looking at congress could say we're going to reexamine out the scope of the order there are well no there must be some we don't want to remember doesn't say that they'll remain or some very specific yes you're on and that's to recalculate your ra having counseled with your position is that you do not object at the proper level to the reminder order and it seems to me pretty clear that the drop were directed commerce to recalculate your rate  their briefs treated as a motion for a man and did you ask the court not to not to to to include recalculation the u s price you grand the wris yes your honor and that's why we came to dishonorable body because we believe that the the court's decision was was erroneous and i am the one minute left i would like to reserve i will give you two minutes for a while thank you very much discretion to look into the to the administrative record we should back up and discuss the statutory anchor for what congress did it look to him in determining the f a a and we should step back get past that and then to address the question of why this particular party's data rather than other data is one of the things that you said in that connection was that you chose this as i understand the co it's not it's not open to question of course  responded they showed they provided brief yes your honor but the methodology used to calculate the separate rate required congress to look to the mandatory the margins applied to mandatory respondents as a matter the mandatory responders that have zero to minimize and if a margins commerce can use any reasonable method based on the language of and of the exemption point any reasonable so you had a choice at that point to select amongst the different companies every few rage when one of or we're talking about the methodology here the methodology still the methodology in the next sentence indicates that it's appropriate for congress or part co may conduct a simple average of the and you'll see at the end of the statute provides for the individually investigated so we are constrained by the statutory language and congress practice to look to the individually investigated we cannot should point out your honor that we are talking about now methodology you know the how the separate was arrived at and that issue of course was never raised before the trade war and indeed in the complaint james has complained in the trade  that the reason you gave was that it was necessary to select a punitive rate to achieve the statutory purpose of punishing people who are not cooperating but in this be instance that's not eight under the statutory scheme and i'm referring to sixteen seventy seven isa b congress can quote can choose any datapoint if your honor i'd like to draw your attention to that statutory scheme because it is incredibly relevant to this case their congress has said commerce in determining adverse inferences can look at four different for different sources for purposes of reaching adverse inferences and the last two and the last or as indicated is data of the minute information on the administrative record and in no way does congress constrain this congress constrain commerce in making a decision as to what value to choose here congress saw based on the data provided that and  yes your honor i'm trying to answer the question i'm sorry if congress determined that it was a reasonable it was reasonable to rely on b w a's data because it was a commercially realistic example it's a volume into the united states from china for the period of one isn't a half a margin and one i mean the two variables one is when it isn't any i'm sorry the methodology calls for us to rely upon the data for mandatory respondents here before the remain and of course we could statutory scheme for the method for determining the separate rate requires that we do a simple average of the two mandatories one of them was an f a we it's inescapable and james you can see is in its complaint and unremembered we have to methodology that reflects the two mandatories in initially our member i mean i'm sorry i can't mean name the mandatories i think you would make this process clearer we have two mandatories the mandatories initially margin is particularly great when you respond it is wrong cooperated by failing to provide withholding information then it goes on it's like some other things it just seems to me that you are you're arguing something today to induce responds to ride to burma completely accurate information a timely matter is one that is that the general proposition that underscores or underlies an e f a rate but again we are constrained by the methodology which which has not been challenge in the trade court in the complaint jane soon embraces the methodology  in this situation your honor yes it does because the mouth dollars because the methodology for calculating the separate rate required congress to look at the mandatory one of the mandatories is an f a rate i mean we have that entity the two respondents again the two mandatories one received in a half a we have two mandatories one received in a half a so we are saying we are basically constrained to day for mandatory one of the first mandatory responded plus  states commerce made used any reasonable method and the end of the statutory text states including the averaging including averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated the mandatories are the only individually investigated entities commerce simply cannot under the plane in the express language of the statute look to a jang suit james who was not individually investigated only the entities we've discussed that received the f a a and that received the zero margin were individually investigated we cannot we cannot step out and look at it would be undermining the issue presently before the court is not whether given this givens the set of facts before the administrators agency this court or the court of international trade would have chosen a different outcome it is whether the decision of the court of international trade was on supported by substantial evidence on the record all the while i was not in accordance with law and we respectfully submit that the lower court's decision was not and therefore this decision must be a is without foundation compass chemical respectfully submit that the first clause of the remained order naturally subsumes a direction to the department of commerce to reconsider the adverse facts available rate used as the department in essence had no choice but to select a new ad first facts available rate for purposes of calculating the separate rates having thrown open the appeal having thrown open to appeal  used in the calculation of the estimated dumping margin the plaintiffs cannot now i'm so mad that only one saw it all of the equation can be effected by the riemann determination challenging the methodology used on the reading he's entitled to write with all due respect you're on of the methodology itself is not subject to appeal it is not subject to appeal in the lower court it's not an e itself that have failed to cooperate the department files of the use of b donation data does not preclude it from calculating margins based on the actual date of it t's appearing before the department for the use of the data belonging to cooperat punish non cooperative entities i do not disagree with that aspect too on the issue is whether the troy's of using b w u b w a's data in isolation was reasonable in and of itself there's there's there's a lot of dispute here on on on the orse on the methodology and we heard from the government and resigning to the methodology of the statute the problem is the input to terminations reasonable was it based on substantial evidence on the record was it in a court of this with the law the lower court obviously it read that it did we submit in the government's admits that it did and we believe that's the standard that would apply nothing in the law that audio on the stand would preclude the use however because one of the two elements of the simple averaging methodology used to calculate the cooperate and to encourage present a future response to appear that would be my reading yes and in you were you participated throughout the investigation yes you are and was counsel at that table as were all the gems you participate  you feel the need to use them i have just one or two quick points v took two minutes to the council four of the government's indicated that they had to use the rates of the of zero because they had a negative dumping margin of thirty four point nine one percent the other respondents came we if we had used the cane we data in lieu of the mean e w a data we would a zone of commercial reality is entirely based on an argument that they had value if you look at the data you will see that their prices were extraordinarily different than every other data point