put on record significant information all of the information in its possession regarding its purchases from this company to try to demonstrate to the commerce department the nature of its the dumping margin that should have applied to it had its foreign producer cooperated notwithstanding this the department of commerce applied adverse facts to k y d's foreign producer and also a correct calculated completely ignoring the cooperation that k y d had demonstrated to the department when you say completely ignoring that cooperation i mean is it your position that if even if you don't have all the information you need to make the our position is that an interested party such as k y doing the fully cooperate should be entitled to receive a calculation based on neutral facts not on adverse facts straight but you can see in your brief that that you only had one neutral fact to give them and that was your purchase price there were other factors that they didn't have manufacturing and shipping costs etc what do you do with that wealth your honor that's why it's fact absolutely your honor and in fact we problem with what they did well they didn't look at our facts they calculated take the completely ignored i can't go into the prices your honor because the prices are confidential but they completely ignore the price disparity the significantly higher factor those prices in no you're on they didn't factor the prices in at all what they factored in was the but the the physical characteristics of the bag and they picked the highest margin assigned to a bag which was similar to the types of bags we bringing it your honor that's the roman that's the roman rule but we believe that they needed to look at the prices themselves the data that we submit it because otherwise in this situation where is the the purpose of the adverse facts provision is to induce cooperation and if this case stands the way it is an importer will never again cooperate with the department voluntarily because there is absolutely no incentive for him to do so well you're overstating that the cause is part of the issue that they can't get the foreign producer to cooperate as was the case here v disclosed the fraudulent scheme they were using to avoid the continued application of the fraudulent deposits keep the export or foreign producers already stopped from selling into the market by the high rate applied to him there no reason to also bankrupt the the innocent us entity the only thing that my client did was my client purchased product at a relatively high price with the reasonable expectation that if something was calculated he would receive a reasonable rate he had no reason to suspect at the time that he purchased that he purchased from a bad guy and when he became he where it's a bad guy he came to the government and he said he's a bad guy and the domestic industry as i've voted many times in my brief the domestic industry characterize their conduct as rings are two why do you submission is raising serious new issues which were petitioners perspective entirely unexpected and then it goes on to discus confidential nature of what they found in terms of the scheme and i'm not sure how punishing or not punishing che y d has any impact at all on the foreign producers but part of it is your characterization i mean if it's that the rate is applied against the product the product that does it yes importer has to pay it if that's what they choose to import but if it's not really  a penalty against the importer at the rate that applies to the product what except that your honor is calculated based upon the data supplied by interested parties and the adverse tracks provision does not distinguish between import or foreign producer domestic producer the statute the fines interested parties and states what interested parties are in if you see a few places in the dumping law it does limit interested parties it says interest for example hundred seventy one eighty four b it says the administrating authority shalott accept any unsolicited oral or written communication from any party other than an interested party described in sixteen for example of the fact available here could well have been the highest rate assigned the highest average rate assigned to the one of the two cooperative respondents in that the price data shows that every p have an importer that provided information which is extraordinary this is not the kind of information that has been historically provided by edward is you've got a little problem mr craven with the facts because the facts that terminations they didn't refute the price that they reviewed simply the nature of the goods that isn't what this says i'm aware of that your honor i'm also aware that you are entitled to not to put it into any calculation the that's right because congress explained that the the price data that's what he submitted was insufficient to allow commerce to calculate the fact finding wood so that you considered it i mean when congress considers certain data it usually means that it's factoring it into a calculation that what you're saying is that that's not really correct or considered it is a more common sense of that word and then reject we considered it and determined that we could not use it that is that is why of course because it was incomplete because the only thing that we had was the u s prices we didn't know how the u s prices should be that wasn't sufficient because there was there were transport and shipment caught was in thailand location a factory that commerce would have needed to factor in under  its statutory and regulatory missions and that it could not do so and and congress of determination that didn't have sufficient evidence on the record was reasonable given given the fact that out of the three  argue that at the price data given how high it was what would have been at least in definitive of the information and that you could have gone to other export orders as compared to prices that they charge based on their bag a quite a number your honor it has to do with the size of the bag how much coverage there is the way handles are fixed the volume of the back there's there's all sorts of these characteristics that are outlined on coverage the banks had in all those things it simply was not reasonable to assume that if those other five characteristics we would have no effect on the normal value whatsoever in congress did what was reasonable under the circumstances which is it matched the physical characteristics at the trial court ordered unit truck were directed in the second remember to a nation that matched the physical characteristics that came when you did report it to the physical characteristics of other salesmen by asking you this it doesn't appear to me that it's a question of the actual evidence in the record from it's more one out where the commerce acted arbitrarily do you agree with that analysis i'm trying what the issue is on this particular matter your honor i think the issue is a question of substantial evidence and the reason is because the promise of cable id's argument is that it i a high price and you didn't take that into account well and i think that comes down to that if you blend into to the question of whether it's entitle to separate and whether commerce could factories and even without having all the other peoples in fact that's that's right your honor the congress made it congress made the argument that it was not required to do that sort of analysis because that was foreclosed under care by the one and under the in and then after the court issued the second reman consideration the second room and instructions congress went back and looked further to look beyond those price i mean the the courts remember instructions didn't say you commerce you must use these prices as they are given the instruction was commerce you are directed to consider this data and after congress considered and judge polled affirmed judge spoke excuse me the  twenty two percent depository when it made the decision not to respond to the questionnaire it's reasonable to for congress to infer that its margin was no less than one hundred twenty two percent rate that was already there was already applicable because if its margins were lower the company presumably would have your data it never did the analysis that the the judge wallach did and it's actually a quite complicated analysis it's not just a matter of eyeballing the data in concluding that the press has a similar you have to it involves very large databases court made some mistakes and we raised that we asked the court to reconsider its decision the court didn't reconsider its decision and we and we appealed once that the final judgment came out you say though although i have it so it's not there converses the calmer issue that is that if you require reassertion of global issues such as the the constitutionality of ever using an i f a raid against the airport innocent importer that that effectively wipes out the purpose of the reunion process which is to continually narrow issues and you know when we've had many cases where the cases come up here and we consider everything that happened at every stage of the process in fact that's what you're asking us to do in your cross appeal to how do you respond to that argument well it's a different issue they have said that the hundred twenty two percent rate is so high that that is unconstitutional when it goes back on remand and congress wants a lower rate it that way my understanding was that they felt that this particular movers i don't think that they're objecting to the selection of some sort of a half a rick i think they're they're saying that this particular it was just too high to be crowned or does not reflect they they believe their commercial reality i think i read also by statute the importers liable for paying those duties and the majority realize that sometimes they're going to be instances where you have an unofficial weighted importer who gets stuck with a bill sometimes when it's dealing with a supplier who turns out not to be cooperative and doesn't respond to the questionnaire but having that liability in place is important because it furthers the statutory purpose of encouraging compliance by exports which are really the part of the commerce needs to cooperate in its proceedings and if you had it any other way you would undermine the dumping law because compliance i would point out that the statute does not distinguish between interested parties for the purposes of the courage and co operation it's simply in purges cooperation if we apply the reading that's being proposed but an importer can never provide information to overcome the rome lank or otherwise cooperate or we have not only not encouraged cooperation from the importer the interested parties we have discouraged cooperation because there's absolutely nothing then that an importer can ever say that would ever be helpful and in this case in petitioners own words the information provided by k y d will raise serious issues that were significant and that information will never again come to the commerce department if this interpretation of the provision applies and if that's the way the statutory scheme is set up a policy determination that would make congress but that's not how the statutory scheme is set up the a f a provision says the term interested party it does not limit interested parties applying to foreign producers it's just interested party and interested parties as defined in the statute and the exceptions in the steps that you does sometimes limit interested part that did cooperate there's there's no issue that k y did not cooperate that we hear the commerce department say well the information was incomplete or we had questions they didn't send any questionnaires a supplemental questionnaires goes against the commerce practice that congress has a a regularized practice of seeking information from many different parties they didn't choose to ask in this case but that doesn't mean that k y d still wasn't encouraged  cooperate with respect to the gallon ocean org and i would point to the counter the argument is it's an eighth amendment problem as applied as applied and it was a simple there's a simple solution to this which is applied constitutionally and don't don't tell lies k y d for its cooperation and with regard to the gallon ocean i would simply point out the gallon ocean was decided after cases were briefed so of course it would be difficult to address gallon ocean in the