rates according to the hierarchy of commerce determined that they were relevant and reliable and because commerce determined that they were relevant reliable commerce determined that they were probative who called commerce had a problem didn't they as as is the government the in the right the only the only time that f a a raids are going to be applied and there is going to be a corroboration requirement is a set of circumstances where there's been a finding that a responded failed to cooperate to the best of its ability and that is she was litigated and has been resolved that's the first step of the f a a process and that's the only step at which s r s conduct is relevant the second step is the selection of that secondary information and the third step is the corroboration from independent sources that is where commerce its conduct comes into play or did congress meet the statutory and regulatory mandate to corroborate from independent sources keep in mind the allows for those circumstances where there legitimately are no independent sources congress can make the finding that to the extent practicable from sources reasonably at its disposal of its is made at its disposal corroboration from independent sources  possible that's not what happened here at most commerce stated that there wouldn't be there are generally no company specific independent sources available for in the c b d context but that company specific limitation doesn't appear in the statute doesn't appear in the regulation and if it's removed there is evidence of record in this proceeding from which congress could have caught the rated these rights that document difficulty with that let us play and why it's not not that difficult to understand your basic argument is that the rate here is essentially fictional and the government's essential submission is it may be fictional it may not be fictional but if it's fictional it's for reasons that you did not adequately present to commerce or place in the record of this proceeding so what grounds do you have for challenging the rate determined in that we determine that you actually told commerce about in a timely fashion and where is that in the record in  demonstrated to commerce that they had not corroborated these these rights and that there were independent sources available to them specifically the two thousand and six determination in the eighty administrative review that  corroboration there's no question that the rates that they relied on are in fact there that i don't mean the rate they sign to you but the various pieces of information that they obtained were accurate pieces of information that's the normal use of corroboration that's what six hundred seventy seven b c is about the second talks though about having to justify reasonably the relative accuracy of the rate chosen after drawing an adverse inference under sub their graph be so while it isn't the explanation that commerce gave and don't use the word corroboration because it's not actually corroboration a reasonable explanation based on the information within the four corners of the record for its choice of this fifty plus percent rate and i would like to come back to the question of whether or not these rates are going strictly accurate but to answer your if commerces judgment is guiding it towards the selection of the criteria commerces judgment can't therefore also be that that that check the idea is that the statute sets out a involved here are borrowed from pirate miserable views right with those with those pieces of the prior reviews were actually put in the record in this case in a timely fashion unlike the material that was that issue in that two thousand and twelve case here and administrative review rates as an example of the need for corroboration from independent sources because they may not be reliable because they're from different time periods the statement of administrative act cited by both sides in this appeal uses this type of information as an example there's no such restriction commerce is given a very wide latitude to try to attempt that reasonably accurate estimate of the response actual rate of be it with a built in increase to deter noncompliance and that makes sense because the entire  mechanism is constructed for those times when responding didn't to the best cooperate to the best of its ability to provide the information on which commerce would otherwise reply i choose me rely that the structure of the mechanism is latitude in identifying secondary information and then seeking to corroborate it from independent sources but it is nonetheless intended but that latitude is given so that commerce can continue to work towards the  so you had started i think by saying that there was a document in the record that had they read it properly would have shown that the c i p program had certain limits that would have made the ultimate rate here inappropriate am i right that is correct and concluding that that you did not call attention to that document and say here's what it says you you can't possibly conclude that we deserve whatever the rate is based on that that this is an argument about the content of the document that did not make those correct the question you know if the if that was in the context however of a remained for the purpose of co revealing the basis by which was corroborating or rationale or or the rationale that it probably wasn't possible here those those draft results just parroted back the selection criteria s or was not put in the position of knowing what it was arguing about our comments you'll see in the record war please tell us how you're corroborating this information what are the independent sources you're using how are these programs similar thinking that the similar language maybe of commerce was attempting to corroborate it was not until the final results only meant that we learned that congress deemed its results to be x inherently selfish or robert of obviating the need for corroboration from independent sources and that we weren't arguing about which sources should be that its selection criteria wasn't inherently corroborative by pointing out that we know we all know what the actual rate is and that it was that they were fifty four percent off of their right but no there wasn't a specific reference to the scar industrial policy and the specific limitations at issue here given that commerce is legal position is that it's rates were corroborated upon selection for a judicial review was always going to be necessary in this matter and there's no one fairness to the administrative agency here given that congress this isn't a task that congress undertook that we could have criticized they could have adjusted accordingly and only then i dealt with it as we're introducing these challenges for the first time he'll this is a task that was not undertaken commerces position is that it's rates were corroborated upon selection if such is the case the this core issued its judgment in two thousand and twelve the matter was over and what the c i t did six months later in asking for more than eighteen remaining for some more information you don't regulation as the commerce department noted it's remained results as art was the sole respondent in this into a segment of the investigation the commerce department had never investigated the chatter scar industrial policy program before there was no information on the record regarding the chatter skaar policy program they've never calculated a rate under the program and so they were very limited on what they could do in determining in a typically and a lot of the cases asked are cites to our anti doping cases and anti dumping cases you're typically looking for surrogate value information for good or is typically good the commerce department noted that in a countervailing duty cases typically the sole sources of that information are the response from the foreign producer or the foreign government in this case s are did not cooperate with the investigation the government of india did not cooperate with the investigation and the government of chavis carter did not cooperate with the investigation as our has not cited to any evidence any independent evidence that would be available for the commerce department to corroborate this information and they cite to this i mean there's citation to the regulation one nine hundred c f r three fifty one thirty eight d is instructive because it says independent sources may include but are not limited to published price lists official testing and customs data and information obtained from interested parties during the investigation a review there's no evidence of any official price lists on the chairs car industrial policy program what the benefits were to individual producers there's no company specific information regarding this program on the record that the commerce department could use to corroborate that information now that's arsenic is here did you all have i guess i'm thinking in particular that the document that mr morris referred to i don't have in mind what was in that document but that that that describes the industrial policy in such a way as to communicate any limits on it there there is some information in a document that was placed on the record by u s steel it's in the it's in the records and joan government and it has a description of the program but there's no detailed information it's a summary document we don't know if what producers have applied under the program what benefits they received if s are was eligible for the benefits how benefits would be applied to a specific producer so in particular where one can't tell from this for example this may be an idealized version of their point if if your state gave a fifty percent subsidy on what turned out to be a two percent input to noise and input it would be crazy to apply fifty percent to the bottom line it would be at maximum total o percent subsidy for the value of the ultimately of the downstream good you can't tell anything about that from this in this this is a summary document but these politics you know we don't know if this is accurate for the time i mean it gives a two thousand and four to two thousand and nine it could have been amended it could have it could be changed in the future there is information in here and under us certain assumptions you are could make certain assumptions about how this data would be applied but there may be other interpretations of this information and the commerce department in its methodology looks for company specific information to see how it was actually applied to other steel producers or how it was applied to other manufacturers that can't be done just with this piece of information but i would like to turn as are also cited to its comments on the draft remember assaults and said that they had raised an argument regarding the sufficiency of the data and that's that's a page one forty eight of the record and they say that it it makes clear the department had at its disposal other information they have a footnote for and then it document that this court remanded to the court of international trade and said you can't force the commerce department to look at this document and so the argument that s r did make to the commerce department was that you should look at this document from the prior administrative review that oh yeah well the circuit already said you can't force the congress department to look at it but they should have looked at this document that found that we didn't participate in this and use that as corroboration for the a f a rate that was applied more info on the period on behalf of the united states steel corporation rather than try to repeat a thing that the counsel for the government has just said i'd like to begin with the question of the content of the scar industrial policy what has been on the record what if what inferences if any it might be possible to draw from that document i think it's very clear that document is an over a pop over all policy document where it is not clear at all how these programs are administered in practice and indeed that's why the department of commerce was from the very beginning of this case seeking information about the functioning of those policies not only from sri but also from the state government of china scar and the government of india each of those interested parties the only interested parties who could have possibly benefited from that aussie or administered it all refused to cooperate is this court has already found in sri three as a result we don't have any information about how that program functioned in practice it was appropriate for the department of commerce to apply adverse facts available on that basis again as this court has held what us are seeking to do in this appeal is to have congress after denying congress the benefit of any response from any of the parties who had access to relevant information it's seeking to have the department of commerce draw an inference that would not is not adverse to s r but is in fact favorable to us are there no basis for that under the statute or under the facts of this case setting that aside however i think if i've heard counsel for s r this morning correctly s r s has admitted that it waive the arguments concerning the content of the policy how it should be interpreted because it failed to raise those in its comments on the grassroots it does seem to me that at least on that which is pretty central it comes down to something that i have not studied with as much care as you have that is what does that document circumscribe about the outer boundaries of the possible subsidies that commerce could have and perhaps during this period it was a viable policy during that period the document doesn't give any indication of actual use of these policies how they were quite in practice to go to your honor's question of you know is it reasonable to say that if there's an input that's received subsidy that that would somehow be equal to fifty percent of the provide a fifty percent as a form subsidy right jess are we don't know what we do have here to similar to the types of subsidies that are at issue here and on the point about the provision of iron ore or provision of these what else are claims to be upstream inputs it's very clear that as our receive benefits from those types of subsidies at an equivalent rate it received a sixteen point fourteen percent have a lower rate for the provision of high grade iron ore very similar to the benefits ga did iron ore that would have been produced at the s our plant in  for all these reasons i wouldn't know what if anything to the record in front of commerce tell us about i guess the percentage of the bottom line hot rolled steel that the iron ore processing which i think is what was said incorrectly to have taken place in this state makes up well there are a number of different subsidy because it was one hundred percent subsidy on the stuff that took place in this state what does the record say about what share of the bottom line product exported and then imported product back makes up i don't think we have that information on the record your honor we have information on s or its use of separate related iron ore subsidy programs but those involve provision of iron ore from separate mines were separate suppliers we don't know exactly how this would have gone through two s are showing bottom line but we do have information on the types of similar thank you i'd like to start by directing the court's attention to pages thirty seven and thirty eight of the appendix this is the government's issues in decision memorandum and it includes the government summaries of the subsidies at issue to ask taken from the china scar industrial policy and it demonstrates at least with the cut of the government eg knowledge to know about these programs at the time it was assigning  rate among those limitations to acknowledged in the government's memo are hard caps on the total subsidies available for several of these programs at the equivalent of a few thousand dollars a piece the demonstration that even at this point there was in it there was a departure from commercial reality and the a half a rate there's also some been some question about commerce his ability to  corroboration mechanism as reflected in the statute to be speaks of corroboration from independent sources commerce isn't required to find only one document against which they can attempt to determine the commercial  words congress could have went to multiple sources including can be looking at the percentage that goes in the relative percentages of the arm in addition beneficiation process as to other respondents in the same way that they borrow rates from other oration zimmer actable on that basis i believe generally they stated that corroboration is generally unavailable in the c b d context but i don't know that they made a specific finding here and that seems like the type of determination that should be made clear and unequivocal the question isn't that there are there wasn't those rights it's just that commerce believe them not to be necessary because they believe their selection criteria to be inherently corrupt off its syllogistic compliance with the statute not