on the rate issue is the only fact that matters in this case is that b m w fail to respond to a quantity and value questionnaire and that permits commerce to impose any rates and this court should affirm the court of international trades is is that the courts are required to consider and commerce was required to consider what degree of deterrence was warranted based on the record of this case and that's what congress failed to do so it needs to consider what the deterrence factor in the case needs to be and it doesn't it's not permissible under the law to treat a respondent who acted in bad faith who was fraudulent who this was administrating authority of the situation that resulted in the administering authority using an adverse inference and selecting among the facts otherwise available i think that's really what you're relying on here but i'm not sure if this is the version of the statute that applies and it's so so  we believe that the t p a the trade preferences extension act which modified which which in fact of the new legislation we believe that it does not apply to this kid in the remained results department stated that it considered the remained results to be a new read determination and therefore the standards created under the t p a should apply and those standards that those legislative changes concerning commercial basically the t p a put into place provisions saying that commercial reality did not need to be considered when considering what rate to apply and it said that congress is no longer required to consider what the rate for the a cooperating respondent would have been as a result  believe that the previous version of the statute applies in this case and we believe this court's decision ad hoc shrimp speaks to this issue an ad hoc shrimp this court decided that you can't apply the t p a retroactively and the  or the prior version applies as a matter of law the thing of actionable applies however that we do think of this court decide think it regardless yet because there is language even in the current version of the t p a that says the commerce must considered based on an evaluation by the administering authority of that you're relying on in our case for is the idea that it should be punitive and also the fact that in the there's also language that in the legislative history of the if they provisions the commerce is required to consider all evidence on record weighing the record to determine that which is most probative of the issue under consideration so it's not expressly in the statute you're taking that out of the legislative history that is part of the yes but part of the statutory scheme as it has to mean very basically the the decision has to be based on substantial evidence on that record and we believe that that's where this decision fails we asked the court to consider the following that the rate applied here of one hundred twenty six point four four percent which was that was calculated on  mand is eighty eight times higher than the rate applied against every other respondent in the segment the segment of the proceeding the department itself recognised in the preliminary results of this case that all calculated rate cut the rate in half i mean it's not it doesn't appear that that they didn't consider that all they still felt that there was some need for the terms right they they did cut the rate in half but they still did not support their decision with substantial evidence on the record and what they were required to by the legislative history in the us law but commerce said that at the rate that shows representative transaction specific dumping margin corresponding to actual why that range why did it so let's settle on that number and congress doesn't provide an explanation for that and more importantly what it doesn't provide an explanation is why did b m w require a deterrence rate that was more than double the rate it would have received had it didn't respond gets to have a rate that's lower than the rate it would have had had it not asked for review right well no not lower then but i think congress is required to consider based on the party's actions what rate it was want what rate was warranted in cases for example before this court where a party has already been received and if a rate before the department and then in a subsequent review it still does not provide information and it still does not any higher than fifty four percent if it's if it's so big but if that's true then your theory is we can ask for a separate evaluation we can choose not to cooperate and then whatever everybody else gets who does cooperate that's what we should get a no no i'm sorry fifty four percent was not the rate that was a that was what everybody who cooperated got everybody else got one point four three percent so for the party to get rid of plastic ministry of review i thought that they got fifty four point two seven percent am i wrong yes exactly so for parties who did not request administrative review they got fifty four point two seven percent so why don't b m w get fifty four point two seven percent they asked for you but and didn't cooperate well but it's not that they didn't cooperate i understand they a mistake was made right mr and mr stan but nonetheless they asked for a review why did they get something why would they get fifty four point two seven percent they didn't request review but but in this case the inadvertent omission of if if the issue is what deterrence is required wasn't it enough deterrence to just simply not give b m w the benefit of the review would have requested b m w had nothing and also language in the s a a the s a a says that one of the things that commerce is required to consider in the legislative history is that congress should consider the extent to which a non cooperative party w had nothing to gain from not cooperating it was it in advance inadvertent omission they wanted the administrative review they had gotten a zero percent in the the parallel german proceeding there was a gap of two and a half years that occurred between the initiation of this case and when when it got reinstated and as a result of that that they felt they missed a deadline and they weren't engaging in gamesmanship and so if you look on the record of this case it's our position anything higher than one point four three percent but no higher than fifty four percent would have been a priest would have been a deterrent enough and that's especially the case here because the order in fact right shortly just a few months after reinstatement the order in this case was actually revoked as a result of subsequent sunset ledged review so the order was revoked so what is the deterrence factor here there are going to be no further periods there are going to be no further review periods in this case where b m w would've th participated again so what was the future of deterrence that they were trying to you know prevent here for b m w by imposing a rate that was double double what it would have gotten had it simply not requested its own administrative review your interim about  statute imposes a requirement that a review may only be conducted if a request for such a review has been received and we are appealing the department's unlawful reinstatement of the administrative review without following the proper proper process and good morning honors may it please the court will be concedes that an application of an adverse inference was weren't in this case based upon it so are can we just get to the heart what we were talking about with your friend on the other side which is do you do you think there's a statutory or some other obligation or why on the legal stand you have to take into account whether or not this was punitive or whether there were some remedial council but but it also of course serves as a as an example to others on an other council that right but should there be some articulation of why in this particular case in these particular circumstances this number serves that effect no we don't believe that that the statute requires commerce to do once commerce has determined and that it's within its discretion to determine whether to apply an adverse inference it's practice what we would have statutor that we have to review it how are we supposed to review whether or not it falls into that kind of category when there is no explanation or well one it one way i mean one way we can do that is to look at what this court has has simply because the rate is higher even higher those are merely expressing the question it's not i mean i understand that b m w here is saying something they think that they should have the same rate that they would have had they not request review truth about that but what about something in between that and one hundred twenty six and why isn't there some discussion of that in congress as opinion it certainly would have been within congress discretion to to pick another transactions specific rate as the as the if a rate without considering the reason why the party didn't comply with commerces request for information yes and i think actually it is worth pointing out that the facts of this case and even if you accept the premise that b m w is putting forward that the congress was required to consider the facts of the facts you're not helpful to b m w it and i have to say i'm really not understanding with this discussion about is that the government's view that it does or does not have to pick a rate that's not human but congress cannot pick or its punitive and what is the government's you as to how we review whether or not that is the case doesn't there have to be some articulation by commerce is to why they think that that indicates to us that it was warranted and knock you know to i think  was a reasonable number and why that number seems to me i'm looking at page fifteen eighty and this again is really talking about whether it was absolutely sure it has nothing to do with whether it was pretty  aberrational it's not punitive i mean because it's well but also specifically because we're talking about a rate of a cooperate of respondent during this period of review this is a real number it's not a petition rate it's not only from twenty years ago it's a be higher than those who didn't see review as commerce had just to look at the facts and second number for those even without their involvement and so how could commerce find a number well what we're talking about is again and deterrence value to asking congress to review the party and then not withdrawing and not participating and and so they they were they were never under any obligation to cooperate with with all the deterrents in your mind is not just to deter someone from failing to operate and to prove them from ever even asking or with you know no absolutely not you know it's from feeling it's cents between fifty four point two seven and one hundred twenty six why wasn't that considered i mean i understand you can't second guess congress right now i'm just wondering i mean where there were the those are those the only two honestly your honor most of the time it is negligence it's not it's not the facts of pure fabric when you know there's actually a front on an operation most of the time it is a party's failure to act to the best ability which is all the statute requires i'm really trying to understand how much the government things that have to say or not say is it your position that just based on what we're reading in fifty nine hundred fifty nine  know it should know that most of those were too low and that that was b m w's only challenge so that the commerce department didn't have to go the extra step and then talk about why the difference between fifty four and one  what your rationale is for the fact that it's not punitive so you're responding to my question the question is i don't know what to do with that just say the parties are generally know that we're going to pick the highest rate and therefore that's not things to do and when commerce isn't going on anymore how can they just reinitiate without help well i think the answer would be that you know you spend a lot of were the subject of the review now with this avocation notice that obviously didn't decide on any rates and at that also at the end of the notice as well all of this remains suspended so obviously there was unfinished business so the notice on its face tells you that well something will still need to be done in the future because this these interviews are there but they haven't been decided and we're holding the entries in abeyance until we do so w but it was not the result of any action that congress that was the result of the b m w i guess misunderstanding of the first notice and then its failure to act on the second notice or standard is to ensure that that the rate is warranted by that the deterrence that's required and that under the particular facts of the particular case and that's what congress did not do in the in its we meant result of the case in this in this case in it remained results the rate of one hundred twenty six percent was applied it was for all intents and purposes an arbitrary number the department of commerce recited several reasons why it fell within a certain range and why it may may not have been aberrational but it didn't explain to us why that rate why that level of deterrence why did it have to impose a rate of more than double what b m w would have gotten had it simply not requested its own administrative review and we're not saying that the court or the department is required to pick a certain number but it is required to to base its decision on the record of that case find the rate that is most probative and sure that it's not punitive and determine what deterrence is required in this case the there was no deterrent factor really required because this order had already gone away there were going to be no future review periods b m w was not going to be engaging in another review and if if the motive here was to use  not tied to b m w s own actions on the record of this the legislative history and the statutory scheme require the commerce look at the whole record and that its decision is based on substantial evidence and i see that i'm going