to the c i t so that it can do what it failed to do in the first instance which is to determine whether the challenge aspects of congress's final results were or were not supported by substantial evidence on the record or otherwise in accordance with  x ultimate goal is to have the final results of the first administrative review of the underlying anti dumping order amended we are not requesting this court to rule on the substance of the challenge aspects there and rather we recognize that obtaining the ultimate goal requires a multi step process that must include sufficient review of the issues by the c i t and its brief the government acknowledged this necessity when it stated that the trial court should have addressed the merits that it is unaware of any basis under which to challenge the trial court's jurisdiction in that remained is appropriate here the government compared the current case to ad hoc shrimp trade action committee v us a two thousand and eight decision in which this court the mandate the matter to the c i t to address the merits of claims which like here it failed to do in the first instance we review these decisions to noble looking at the record why isn't there enough on the record for us to reach the merits and sustain with some this the record here below from a clean slate however it has stated i think numerous times that it usually begins it's to know what review with the informed opinion of the c i t assoc believes that the reason this is so is because congress has established a system of reviewing anti dumping orders by which the c i t is an integral part this is their specialty this forms the majority of their docket of cases and especially in a case like this where one of the issues involves a departure from policy we think that the c i t specialized review is especially appropriate here financial statements in their entirety i know the government and grow best have argued that this was not a change in policy but clarification and policy and they both acknowledge that congress has application of that policy has been inconsistent in the past the reason it has been inconsistent is because congress has policy has been to evaluate the totality of the circumstances to look at each case on a case by case basis and not simply have a per know i think the council has argued here that it actually does away with the fear of arbitrary decisions by congress we don't believe it's arbitrary decisions but sound decisions the reason congress has looked at these on a case by case decision in the past is because there may be some cases where a company that has shown zero or negative profits their entire financial statement may be tainted for these purposes however there might be circumstances where they are not i think commerce said that the underlying profit is a direct result of the s g and a expenses the overhead the other things here which they have decided to exclude  however profit can also be a product of other things things out of i guess unforseen circumstances profit can be a result of what they're selling price wise a number of things so we believe that congress practice in the past to actually look at these things on a case by case basis is it is a very sound decision well but the again to follow and judge dice question that that is merely to say that you disagree with what commerce has decided to do by way of a modification of its policy and you're not suggesting that congress is being arbitrary and capricious and just applying one policy and one day another policy the next day and with with no consistency they're simply employing the practice it seems to me of what agencies do fairly typical in that is to refine their approach to the problems that confront them and where necessary change policy isn't that what's going on here interesting i don't think so your honor here we actually have the preliminary results then which congress actually included the financial statements of ionic the fact that they changed midstream with respect to this review shows that you know there really is a reason why you know you may look at the entire financial statement to tally the circumstances after each and every case what  fact that the changes occur at that particular time the change in policy indicate that it isn't an ordinary change of policy i'm not sure i follow that i'm not sure that it doesn't matter that that is rule and somebody can come in and say this is our turn capricious you not applying a rule consistently it's another thing to say that the agency has decided what we've been doing is not really as effective as another approach here's the new approach we're going to follow  regardless of when that decision is made whether it's after when the nerds or not that still is in the in the world of judicial review of the agency action that is not considered  consistency and so forth that independent of the merits of the position impeaches the change we think it's the actual policy itself not necessarily the way it was made but the policy itself so you're really you're really ignoring  suggesting to us that we should ignore the fact that this is a new policy and so forth it's the fact that you don't like the policy and you think it's wrong well i think on one hand a remained is appropriate because with the change in policy the cia t n specialized expertise should review th many however if you were to rule on the merits here we think the policy itself is it is not correct you know we have set forth an example in our briefs and i think it really hammers on the point this policy essentially says if you have one company that showed zero profit in the in the period of review that that financial statement is unusable if you had another company that for all of the reasons was very similar but showed one dollar of profit you could use that financial statement and that seems like an unjust unjust result and i think a similar way of looking at that is if you take the same company who showed zero profit in one year and one dollar of profit the next year in one year their financial statement was not usable but in the next it was just fine to be used so we think that this really argue s'pore the need to look case by case situation of the totality of the circumstances and see are the other items in the financial statement outside of profit actually tainted opposed to the apex data which was also on the record which we did which we've asked sac suggested to be used and the other vietnamese party in this case also called this the gold standard in our view for it why wouldn't there be certain logic in taking the novice the which covers the eight major storm producers and gets information from over two hundred bangladeshi shrimp industry participants rather than just one actually a just a correction your honor it was not me eight major bangladeshi shrimp producers there were each shrimp producers but actually only one of those eight accounting for significant production in bangladesh also out of those eight four of them didn't even export products in the united states so there's plenty of reason why they're not the rod market average they cover for the five major shrimp producing regions of bangladesh i've got there's just a certain logic of having a report that covers a spectrum of the market as opposed to one company absolutely i am sure if you're i'm sure if i were in your position i would pick the one company that to that makes your case best and go after that which apex may well be like why wouldn't we sustain an action that seems to look at a broader spectrum of the market well because your honor simultaneous with congress final results in this review was their final results in the review from from china in which they stated that using a broad market average  general accuracy of prices in general price information is what was verified we argue that it is not reliable because there is no evidence on the record that the prices are tax exclusive which they're required  be we think there are eight number of reasons also it did not cover all of the shrimp account prices account sizes that are in question here so what happened is they had to fill that hole through extrapolation what we had was an audited financial statement of a major producer who export and intending that the apex two should have been complying with america study you know we think that the apex data should have been used on its and has that was audited reliable data by combining it with data that we think got it on its own is unreliable would not have cured this situation here what is the status of the this is the first administrative review that we have before us one is the this right now of the second and third all of which i guess are cascading along i i cannot speak to the exact status but a number of these are still ongoing there are people i guess the in the briefs there was a reference back and in september i think the second was before the c i t already it was one of the reasons the judge was be reached the judge aqualina declined to reach the merits here because these issues were going to be we i guess i will close in my comments right now by stating that that opposing counsel in this case both the government and grow best have acknowledged that the cia did not do its job that we should have had a decision and interestingly in this goes to your question before your honor about whether or not a in agency can change its decision midstream and  issue no we did not we breached only the merits before the court of international trade this was a suicide by the position where are things with respect to the second and the minister with respect to the second administrative review the core a different judge in the trial court remitted with respect to a different issue and i believe that ad hoc dismissed its claims concerning the knack of the use of surrogate financial statements was not before the core in the second administrative review not could that issue was not done at issue was but i believe that ad hoc was arguing that congress had not use knock it out and should use a different data source ultimately be assessed for one company's exports increased for those exports made between two thousand and four and two thousand and six and the statute in visions that relief being available so we don't object to having its day in court on those issues what happened in the us when you did use the financial statements for companies that didn't have a profit would you just use the g n a figure from those things or would you actually take the negative the offset against the profit for profitable companies commerce would not use the profit from the unprofitable company but i never use the profit that's correct so it's all a question of whether they should use the  product that's true yes and well and why does the lack of profit render the g n a t figure on the long haul well congress explain to pages page forty five of the appendix that there's really a ripple effect so if there's an unprofitable company it'll have difficulty getting credit there might be other reasons that and so what would occur is that the financials of the company would be distorted by the fact that it was losing money in fact in this case if you look at page fifty two of the appendix by onyx the company that that ad hoc six six to have added into the financial ratios only operated for a short period during the year and was having trouble obtaining credit and borrow money and so it wouldn't be indicative of what a healthy company its performance would be and so the department of commerce said wolf we have other good usable doubt on the record why should we go through this to these  sets that involve companies that were losing money because we have reliable information on the record and as commerce explained page forty nine of the appendix those doubt of the good out of it are on the record have to otherwise satisfy commerce s preferences for certain values so we know these daughter good not only that the company is making money but we know that the debt are good as well and what is the state of basis now adoption of a per se rule walk me through congress it's progression from the case by case to the present rule  congress had explained that it had a preference but it had applied this preference in consistently as commerce noted in its in its decision memo and in fact it applied it did not apply that preference of the plenary results and then in the final result after this issue was briefed by the parties in their case briefs department of commerce issued a final determination where it where it expressed its new rule that if there's if there are otherwise good dad on the record for profitable companies from which to glean financial ratios then the agency is not going to use financial statements of unprofitable companies and although we believe it was a clarification of the agency's preference which was in shrine and in a policy to the extent it's any a change in practice this court noted in yet another ad hoc shrimp case five ninety six third thirteen sixty five citing the f c c box it's not a difficult standard for an agency to meet to change a past practice all the agency has to do is explain why it's changing its practice  and this back to the court of international trade and the reason we take that position is quite simple we think it's a unique situation we think the court did address the issues it may not have gotten to all of them it may have misunderstood some of the issues but it it did get into at least on the topic of the not to study the rest of it least slightly the question though how did it come out well it came out that they decided that the the judge decided it in effect that the issue was that the not to study in particular was going to be on appeal later and that and that court would have this plaintiff would have this court order the ita to rely solely on information for a picture to the exclusion of data for other such prospects their position is that that's an accurate statement of their position yes so but the plaintiffs raised were we have a situation in which you are being asked to apply a dyno review and you have the ability to apply did not review the the merits of a suit to review yet is there i'm sorry but there is no decision to review yet is there how do you mean there's not a signatory well he hasn't decided what is the status of the naca study how can we assess that to see if it's correct or are not under your standards or view you would you would seek to review what the commerce department decided many of you know let's suppose that the court of international trade frustrated with this court they say it's cases back to us we'll take it from there why isn't what you're suggesting an invitation for them to do exactly that but i i it perhaps it could be i think we have a unique situation with  requires it tells us to go back and redo but i think the work of the court of of international trade without reference to the court of international and i agree if you were to receive decisions like this on a repeated basis then you would have good cause for that concern but i think this is a unique situation the judge did not go through the analysis like he should however what i think needs to be balanced here is not merely in just the interests of how the judicial system works right here but also the interests of the parties were with the judge didn't even hold oral argument did not took two years to decide a case that frankly i think everyone in the room would agree was a relatively simple case a very straightforward case what you're what you would be doing in this case would be subjecting particular respondents who are the ones who are affected by continued litigation here to two longstanding prolong wig asian which frankly is only in it in the interest of plaintiffs because it maintains it continues to suspend liquidation it continues to leave uncertainty in the marketplace as to what the standard is because of pending litigation so what what and what would happen if it went back to to the c r t you you would have been decided again perhaps this time decided completely and it would be appealed back to you again and you'll be asked to do the exact same thing we're here to talk about you doing today which is to effectively under you're going over review the standard review with the commerce department decide how long all of that take this is already two thousand and seven when this case was was originally appeal and in this instance you have the ability you know what i view as a unique situation you're not setting a precedent it's a unique situation you have the ability to decide the case tell the judge see id that you decided this wrongly you result was correct  we also agree we should sustain what the commerce department decided however the way in which you want about assigning it was incorrect and you can in the process also admonish the c i t for or effectively wasting the court's  time in going through that process but that i think is in the best interest of the parties it is not inconsistent with the role that you would play in any event if i have a little bit more time  i don't know that if you have any questions i'm happy to address them but i think it's fairly clear that the plaintiffs have simply are simply saying they like their alternative better they haven't raised issues that show the not to study that choice of the julie's rather troubling recitation of the delays and and the perpetual jeopardy that the marketplace is placed in when the court does what apparently has happened below we absolutely agree that it's unfortunate that there has been this delay at the cia he had fulfilled its obligation we should this court respond that we still believe that we must look i think not perpetuate the delay but the grotesque talks about judicial economy and judicial economy has to be more than about this one case if this court tells the cia we can put an end to the delay without departing at all from our standard review is that correct but the c i t would not be encouraged to actually perform its obligation withstand a review in future cases and tell him to do that yes you could tell them to do that i personally i believe that  back or follow the counsel suggestion as nice a suggestion to we treat this as a one off type exceptional case turns in part or in whole on white here did not perform a standard review because they said well you know us performing the standard review is not going to take care of the situation this court did send it back down then and i don't think the message was heard by