we have two cases scheduled to be argued this morning first cases appeal number two thousand and eleven with fifteen ninety five changed out type of versus the united states  one hundred percent a f f o right otherwise know that person facts available based upon types of failure to provide certain information including factors of production regarding general purpose wheels so to the of sales and it did so by weight averaging the three highest model specific margins from the original investigation however type fast had a verified rates in the original investigation and reviews for other companies in those rates range from zero percent to forty six point four eight percent we don't have to compare against other companies where there's so much data that hasn't been produced to me you have to take it into account in a look back and looking at the issue and it's an overarching issue here and i think it's the most compelling issue apply to type of sales so that is just an emotional appeal by the government and by gleason to the court that has no place to go and it's also implore you to punish by and that is prohibited six point four nine percent rate there should be at the earth an increased applied as an incentive for the party that did not cooperate to cooperate in future proceeds you're saying our case of requires you to start at that twenty six percent and and go out think that is the only mechanism the congress can use it's not the only mechanism but there's a presumption that and exploiters manufacturers prior margin is a valid margin for the proceedings at issue but why is why is that prior margin representative of what a proper rate would have been had the parties cooperate cooperate in this is the rate that was selected by thomas years and that's what we have to work with and they looked at that data said and they selected three models out of ninety six models that's three percent of the products that result that happen to be thirty six percent by value but there were ninety six models so many of which were so that those data for those models were verified they weren't yes you're wrong absolutely so the record here did with the problem with the and it was all verified so you cannot use part of that information there has never been a case ever before c i t before this court where part of a verified amount of information that had as a result specific rate was extracted and also in a way that takes the top of the most the highest margins push and then to yield a margin and then what happens is that you try to corroborated thirty six represents thirty six percent of all sales why does that not reflect commercial reality because it's only part of reality and let me read to you what the c i t said in tied to three that we believe said and i'm read to you in its entirety it's that page thirteen and six of that decision based on the results of the investigation and reviews cited by the parties the court down this f a rate reflects reality the issue is is the a rate so far from what has been demonstrated by actual rates that it must be rejected as a gallant notion or is it an adequately supported rates as in k y did first of all this is not a natural rate it is not the right from a natural rate calculated for anyone by anyone this rate disproportion up tight to sales come are sometimes used as a portion of sales to corroborate an overall rate based on facts available it does not appear to have done that here the problem is the methodology but the same judge the same judge who rejected that because he felt that congress didn't present enough then turned around and said that the that the alternative raid was supported and that there was  percent rate based on twelve percent sales it then decided to accept thirty six percent of sales but the same the same analysis that the court did with regard to two to twenty seven has to apply for the one thirty five forty five point nine all she said she the court says its use is and that's the point of the process yes thirty six percent felt is a large enough proportion to demonstrate some form of commercial reality when the record is otherwise better we the single highest rate in some circumstances yes you can but it's an overall rate that wasn't done here because the highest rate is forty six point four eight percent and that was rejected now i'm not saying the highest rate from from an alternative competitor an pure and inviolate and what happened here was that the top three transactions were taken to yield one hundred forty five point one percent rate which are weighted which is part of the weighted average data set that we all know yielded a verified twenty six point four nine percent rate and then to somehow corroborate and corroboration the congress and the in this co there to ensure we simple and accurate up in margins and to prevent commerce from overreaching reality and it clearly over reached reality here because the reality and i  pollution in here is twenty six point four nine percent rate and the fact that the that the c r t c in type before said that they were right in the review that under question where the information was rejected review there was a three point eight two percent margin calculated now we are a percent of sales problem but i don't see how you think you ever get three point two percent margin takes eight percent of the sales give it the most the hundred forty five point nine percent rate and the earlier computation by congress of the twenty seven point seven three percent rate we understand that the court of international trade expressed doubt regarding previously calculated rate the two hundred and twenty plus i understand that on my question is what principal difference is there in the methodology used the first time around and the methodology used the second time around  appreciate that the numbers are different twelve percent the products of first thirty six percent the second there was a much more searching analysis and of course the the basis of the rate that was calculated that was the subject that is the subject of the final judgment was based on a much higher volume of sales transactions and commerce explained why it was selecting those those sales for purposes of calculating a thing the principal distinction is that they are higher volume of sales second time around than in the sampling for the first time or with respect to the selection then congress also  provided additional analysis which respect corroboration as to why it could not use the overall calculated rates that were verified in the original investigation calculated weighted average margin we couldn't do that in this case because the those rates that were on the record were a derived from cooperating respondents and b were were far calculated rates the normal practice would have been to use the prior highest calculated rates but in this case that was not available if if that's not available to to commerce then it will look to transaction rates and it did so in this case it recognizes that it's less than ideal but because it's corroborated based on the nature of the data that it was relatively recent that was of very high volume representative number of sales it of actual data that we're using so to say that it's not commercial reality distorts the standard it doesn't commerce is not recalculating what the actual rate would have been in this case it's trying to determine what approximate what an actual rate would have been with a built in increase in in keeping with its statutory mandate to where where to have a trying between deterrence and aberrational sale or something that doesn't represent or reflect what was actually happening in the market place of it commerce is using actual fan base by the respondent and those sales are relatively recent one non cooperating entity and use sixty percent of their sales and come up with a lower number and another quite non cooperating and any unused thirty six percent of their sales to come up with a higher number and there's there's no congress can just do that without punitive if it's not for operated then the court then it raises a red flag as to whether it's punitive and that was the problem in gallon ocean was that palmer had used the petition rate even though other evidence on the record suggested that  commerce did not use it invalid ocean it used the petition rate that didn't reflect actual sales that was problematic and it raised a red flag in the court's mind in this case we don't have that problem because we're using the actual sales of qingdao type in in a recent proceeding and we're using a substantial volume of those sales so to say that if you're not you're opponent is already doing that that instead of going back  database or they or the rate that was established during the last or prevented investigation because all of that data was was verified and why why would why would commerce go back and just selectively pull out the models question the the reason is that the the previously calculated rate upon which palin is relying was was calculated under a circumstance of cooperation there was it was not in a situation like  geishas twenty six percent twenty six percent so then it's one hundred twenty percent we could say that is the rate that was tacked on for four for four non cooperation it would be arbitrary for comme apply of just blindly some multiply and that's not what congress did in this case commerce looked at the data and tried to approximate some actual rate with a built in increase and they did that by looking at the actual sales and selecting a significant volume of those sales in order to satisfy the requirement that it that it provides some to turn effect and to ensure  compliance if if congress had blindly applied what the previous rate was it wouldn't be complying with the statute for purposes of the turn effect because it would be it would be rewarding them for for high it's unclear whether appellants are arguing for a particular rate they're saying that we should have started from that twenty six percent the question is what relevance does that twenty six percent have for p court has affirmed commerces practice of using prior calculated rate for purposes of a f a but that's not to say that it always must that congress must always do so and commerce and this court has never morning good morning i think this really have to start with the check up it says that commerce is in the best position ok based on its expertise based on its knowledge of the individual responded to choose what is the appropriate time co operating rate well it's not emotion that we're feeling here it is that commerce looked at this particular respondent and said i'm sorry you gave us misleading information you told us that you shipped and trucks without wheels and we found that verification that's not true you gave us corporate documents that were false that also were not true and then a verification you can see how type acted they lied again they ended up ripping up documents they ended up also putting documents in their pocket so again it's commerce is in the position here if you look at your precedents here and we're looking at approximately five you have to check though and you have got locked and then there's spam k y d and washington international you can also pull in tide turn as well i think it's relevant here and refer to checco and they talked about a petition write something that had absolutely nothing to do with the respondent that's why they rejected it and pam k y d and especially washington international which is you affirm for curium it's the most relevant case here and that particular case to joe similar to typo here did not cooperate clearly you argue  correctly that that more than one rate could be deemed reasonable by the court so that congress could come in with with a particular rate or they could come in with a with a slightly different rate and and we could find that both are reasonable and in  your case you've got a situation where commerce is arguing that the one forty five is reasonable if we agree with congress that it was in their discretion to establish that rate doesn't that and the increase yes i think it doesn't in court but they first well i think that in this particular case my answer would have to be no i think you actually you want to find that the two twice i think you should find the t twenty seven if you argue that we would like to hear arguments on that the two twenty seven r it comes from the same database as the one forty five it's based upon twelve percent of the database we're not talking and single transaction here we're talking an average of multiple transactions that are of the similar product and identical product over the period of preview so it's a long scuse me the period of investigation which was six months so it's a substantial it's one out of every ten products so absolutely not again this is actually why piper did this is what it shipped to the united states it is to need to know this again and it feels like it's a repetitive process here but they followed the statutory basis and found that in this particular situation it was valid but if congress is now abandoned that right rightly or wrongly a favorite band of it how could we reveal that they abandoned it because the court rejected it if you look at it right they could have taken a direct appeal from that that's correct they couldn't but they i think in this particular case where we are appealing the  of international trade ruling and in this particular case we're saying that the court of international trade was wrong and rejecting thomas but even if it was wrong we don't have a commerce number right now that says t twenty seven right again i think you do because i again i think it's there but again we support we think that the evidence of the record also supports the commerce election i think so your argument is that the court of international trade erred that and has now chosen a different rate which arguably is maybe also supported by substantial evidence i think that there is a continuum of documents that are skewed meet rates that are supported by substantial evidence that similar to what you had in the washington international case and which congress had selections they could selected the old rate for the respondent they could have selected a great for another respondent or they could selected the calculator great which came from data from that particular respondent during the review and during the earlier review they decided to select a higher rate i think and they let me let me ask you this that what's that in your view what recalculation and come up with a new arguably reasonable assessment based on substantial evidence or are they limited to the extent to which they have flexibility in doing anything other than responding to the remit i think that they have to respond to the remain and i think in this particular case the judge said i do not believe that the two thousand and seven rate is in accordance with law and therefore they could not look  twenty seven rate again and give it to the court they were limited and that the judge had cut off the con continuing even though again i believe it was supported by substantial evidence and said i'm sorry you can't use that rate you must be limited to the one something or less than average because that did seems to me that that has in effect done on whether commerce is free to just pick whichever reasonable rate whichever rate they argue is supported by substantial evidence that they've got to follow the instructions of the court of international trade on remand they do have to follow the court of international trade instructions on remand and i guess not limited and the if substantial evidence supported the two thousand and seven raid and the court of international trade was wrong in rejecting that great then then our decision would be to  will give you an extra two minutes thank you as the government just conceded there is no difference in methodology between calculations the two twenty seven rate and one forty five percent rate and that rate the one hundred and forty five point one percent rate is not a company specific rate it is a model specific rate and the government also stated that it was a less than ideal methodology that was used to calculate that right now what was used to corroborate there were higher margins of one hundred forty five point nine percent in the review which information was rejected by the court in the actual trade as not being reliable realistic but remember that that information yielded a weighted average margin of three point eight two percent so you're going to have two hundred percent rate you're going to have plus two hundred percent rate and when you put them all together in computer it gives you three point two percent so let's keep that in mind because what happened here was the corroboration in quotes that w should be reasonable and have some pages in reality the check will also said that commerce much estimate a reasonably accurate rate that wasn't done here presumption and that presumption is that an export is prior margin continues to be valid if the export or fails to cooperate in the subsequent proceedings that is exactly the case here that rate is twenty deterrent an increase as a deterrent to induce compliance or cooperation in the future that's what the statute requires that's what congress more that that's what the court this court has required and that's what congress has to do its discretion ultimately abandoned that raid and chose an alternative right rather than then trying to continue to justify that rate does that change things well i think the a good you would have to you would trample on the rights of of  twenty six percent they used that as a starting point and they they used data that represented thirty six percent of cells doing only the peer peer review but your honor congress did not say twenty six point four nine percent and then add one hundred twenty some odd percent what it did was it took three lines out of ninety six and said ok this is thirty six percent by value i'm going to use this and so there was no there was no additions as at the time and i would just say that was going to train as point certainly commerce was well aware of the earlier twenty six percent calculation and they were aware of that as a as a as a basis if you will even though the they didn't express you know set forth a particular methodology like oh absolutely incomparably commerce have a very telling comment said that using that rate for any of the the right i mean if they used the twenty six percent that would not have been punitive no no it doesn't and we agreed that to two that we would expect of course that under under the statute law that to that rate would be added  unless you have any more questions i have nothing to add other than that just to say by the way that touch and was not a proper ration case and also in the washington insurance case the f i f a rate that was selected was below the highest rate calculated and received that