relatively simple case the question comes down to whether the facts of record and the like support the  change congress methodology did you ever submit a properly supported request and if so where is it on the record no your honor because that was not at the time i believe the standard for the  agency what we did explain as we provided this production speeds for a number of our cuts showing that what the department had characterized as a standard cut i'm sorry as a special was in fact the standard cut based on throughput and it was relying upon prior precedents including language from the courts which had stated that the speed was  the determination of special versus standard was shorthand for production speed there are the problem you have in your case is that you were just talking about your own productions and you know these categories are established and they're based on industry standards so i think part of the reason that your request whatever the parameters was rejected is that you weren't claiming that there with the change in a different industry wide standard simply simply put we don't have access to the data of our competitors secondly when we're dealing with the calculations of costs and the like a costs are not based on the industry standard costs are based on the standard of the respondent and we're not arguing that for a following is a long cut versus a short cut the simple question is is it a special cut or is a standard cut and that is based on our production spamhaus lawyer answer the question would be in the th administrative review they looked at individual lines the in in class why in that this decision is inconsistent with that i would have thought that would have been or that is one of our arguments yes your honor i get what did what did commerce say here about the distinction between this situation in the words administrative review situation ultimately they fifty where they disagree with a court that the existing shapes are treated as immutable but then they say the list can be a say say where clarifying less can be expanded but they say that if a respondent produces a type of positive the does not appear among the two hundred and fifty six dollars possible shapes the department's questionnaire and instructions all allow the respondent to report new pastas shapes with  following evidence and it was a photograph and so on that in that questionnaire to shank it had been that way before yes your honor yes your honor and we did report and we do report in administrative reviews shapes that are not  for by name but that's part of the issue is that when you use a name a name does not necessarily mean that the cut is new and in fact as we noted in our brief there is an inconsistency there  it creates a somewhat of a difficulty where the determination is based on the name on the bag not on the actual product you're assuming that or well no enough record evidence are both on the two hundred and fifty six dollars lists one of those special cut and one of those standard cut and they are identical they are simply different names used for the different cut in different regions of italy  and so that's why we believe that's what the department properly should do is what we said which is use the production through put speed as a determining factor based on the fact that it's always been the throughput speed which has been the was ultimately used in the original investigation and the subsequent reviews to differentiate between standard and special as the only issue one classification is is this a special cutter is this a standard only other model match criteria there is no dispute and that's the situation we have here and we believe that the record does not support  protein product and with this entire issue relates to the st number and whether it is something is is is there's no dispute as to what's long and what short there's no dispute as to whether something is  simple question is for long cuts and short cuts they are subdivided into special cuts and standard cuts and the question is the determining factor the break point between special and standard and it always has been a seventy five percent speed and that's what we were advocating in this case and i would like to reserve the rest of my time for a bottle unless you know of anything else you'd like to raise this time thank you thank you very much thank you nothing else you're making me set we don't need to worry about that because it doesn't amount to a practice and i think that's a fundamental misunderstanding of administrative law there's an inconsistency in agency decisions they have to be explained so is there st of all an inconsistency between the worth administrative review and what happened here that's question number one and two what did congress do to explain the inconsistency and why it was not required them to here to the existing shape classification last page sixty seven has the entire the entire quote which commerce believes put believes put its post in context and then to the extent in the th administrative review of pasta from italy the department explained that her its longstanding practice it expects respondent firms to adhere to the shape classifications contained in the appendix to the initial questionnaire listed in the shape list that was included in the initial questionnaire the department explained that it did so only because it failed to recognise in time that pm had contrary to the instructions the initial class in the initial questionnaire reclassif shapes and the the court of international trade henri mandan this is in the court's decision page thirty nine dollars of the appendix noted that the extent of the language the court just read appears it would be an outlier an inconsistent with every products to put a burden on the agency agency to explain the difference and to the extent that that's the approach that's been taken here by the court of the national pride in my view that is not correct the power still has to goes into great detail that this is against the nature of a model match methodology is that it's based here on the industry standard and it's supposed to be something that is consistent and predictable from review to review here this is again a twenty year methodology that is consistently it here too and it is based on industry standards based on the physical characteristics of pasta which is what is required in the statute again i think  consistent results when the commerce has this established shape based methodology and doesn't allow company specific deviations based on wind speeds what about your friends argument that the shapes  question well you heard what your your opposing counsel said that a particular role a teeny type shit is named one thing in one region of italy and one thing in another but they're produced on the same factor but even for the specialty shapes which are in fact some of the some that are irrelevant to this review line speed is is a factor in distinguishing between short and long cuts but other shapes the past such as you pets las a court if i may i'd like to start with judge going to question about the th a minister and every few which i agree is probably the one shred of evidence on this record that could support opponents position but i'll tell you why that's different on physical characteristics of merchandise being compare production speed is not a physical characteristic shape is why did commerce use that in the st four segments of this now a twenty three year old proceeding commerce use that to inform the shape criteria both specialty cuts and regular cuts can be produced on the same line in the only way you can distinguish those those costs by throughput rate if you have a throughput rate of less than seven thousand seven hundred and seventy five percent you necessarily have a specialty shape realized respondent had changed its had changed the coding and sometimes responded change the coding without telling commerce and it only comes up in the final final stage in that case they got it wrong but they got it right in the other eighteen  reman they say we realized too late and what they were trying to do was summarize their position from appendix three of their dumping questionnaire which goes out every respondent in every good case that's a page two dollars to seven dollars of our appendix and it says right there you must classify  shapes in accordance with this appendix unless two things happen new standards or the shapes not on or if you look at that list of ph two to seven years for asterix on that list those are new shapes that have been added over the course is the shooting it's produced on so commerce could determine whether it was above or below that seventy five percent threshold none of that was done in this case more to the point there have been five appeals challenging conscious chief classification in this case it has always been  shape classification in this case is reasonable and they enjoyed responding in the pretty case actually dismissed the argument that production speed is how the base is a characteristic in which they're basing their matching criteria there's anywhere in the record where there's two identical ships classified differently i'm not aware of that and that's not on this record if there was it would be incumbent upon a party to come forward and suggest a change to the matching criteria q thank you  fix every problem in the world we're only here to address the problem with you raise yes your honor and this is to show that the list is in fact should be subject to some alteration and i'm shaking my head no and i shake my head no because you're not answering my question yes you're on air what you said was that a body bag of pasta produced on a lawn with one name on it and i bagged pasta produced on the same line with a different name on it were treated differently but another thirty and two hundred and thirty one are a list of names of pasta that doesn't answer my question is there anything in the record that shows what 's in the questionnaire responses your honor but i do not have a specific citation we did not produce we produced only one name of that particular product the citation was to show that these products  the questionnaire and their own production which would result in different classifications of certain cuts and where are you what i am in the issues and decisions memorandum at issue eighteen o the th administrative review what in the record are you at issue it's an issues indecisions memorandum so it is part of the administrative determinations that the court has before it which is to say  the th administrative review the question before it was whether there was a rd type of set of super specialty versus specialty and the court turned down the request for a modification of the the shape line stating that based on the throughput of the past at issue we can classify them a special sort or specialty long because the line speed or throughput rates are seventy five percent  less than the corresponding line that is the language where is it this is again this is the issues and decisions memorandum accompanying federal register seventy eight  four issues and this is a memorandum i do not believe are part of the administrative record and so it is not just before the ministry to review where the department has in fact distinguished using the seventy five percent basis for determining classification thank you you