was no relationship between the cooperating party the f a party that there is a relationship here and that your client had some leverage  to force the non cooperating party to cooperate and that there was on top of that a risk that if your government did not use a f a under these circumstances that there would be a tendency to remove the exports so that the high dumping margins of forty eight percent or whatever it was could be avoided and second one first in the final results at the department of commerce published any pipe that was exploited by turning them be subject to the forty eight percent rate and then the pipe that was exploited by mueller got was produced by turning them would be subject to the nineteen percent rate so there's knowledge that that particular sale took mueller will be sent to the united states and you were export some type that was produced by turning into united states it's mueller's apply f the way the antidumping system is set up if congress has concerns that that reseller congress found and said in tongues among which is that a situation where a producer sell to multiple resellers and each reseller has its own rate there's no a vision because one reseller sells two united states versus another one i mean this comes up i congress has never put forth an argument that they're really that they're not affiliated under the statute and they interact with each other arms playing what about the other argument even though there's an arm's length relationship as you say that still a purchaser has some leverage over the supplier to get the supplier to cooperate and ternium to cooperate if they don't cooperate fully but they answered the original question or that was issued to them to go and i don't think that's a full answer the question i don't know but but but if i may turn the input for hundreds of pages of information on the record with respect to its costs and the limited hole that the department found with that backdrop information wasn't product specific on that department wanted product specificity on five characteristics and retrospective and so by the time the administrative review has commenced the entire period been covered by that review and come to a conclusion so mueller did encourage ternium to participate so we're going to shift a bunch of our supply that we ordinarily would have imported directly to sell to neil we don't know where any given piece of it is going to  should not be expressing opinions about questions by nodding at least on through the but that i think you are probably getting getting getting a question with the knowledge test be satisfied or dubiously satisfied or what if germany and did a kind of large scale shift but had no idea where any individual site or segment was going to go so you're honor hypothetical because the knowledge test is not part of this appeal but i understand where you're going to be at the way the department applies the knowledge test is on a transaction specific basis so it's they would test for any given transaction at that time did the producer know that the product they were selling to the reseller was going to be resold as subject merchandise that i guess is what it feels like it makes it a not fully satisfactory answer to the underlying policy concern about use of mueller by charmian to evade its forty eight percent but again i mean it's the crux of the department's analysis is who is the export or once they determine who the exports are is that exports are kept its own dumping margin and the dumping liability for the importer is based on who that export are once again if that's a concern that the pardon has in the macro then they need to go to congress to fix it or adopt a new policy but they're very normal course is to define who the export are is based on their knowledge and in this case be clear we found that we were with the export so there's no shifting and we think from the clinton era results mueller's margin was around five percent and then the final result there was an it was nineteen percent the differential that exists now in the final result that they published is greater from nineteen percent to forty eight percent and the differential would be if you fix it in the sense that if you didn't allow an adverse inference to be used in calculating a margin for a fully cooperative responded court to begin with the question questions from judge dyke and judge toronto regarding the knowledge test that was raised and my friends and colleagues reply brief the knowledge in other words the question that commerce after under its reseller policy is whether the producer knows that a specific sale of goods a specific transaction whether that is bound for the united states through a reseller so as in this case ternium knows full well after years of doing business with mueller that mueller is reselling terni products in the united states but it can pose advise to the fact that any particular sale it doesn't know whether that's going to the united states but good there's no question the time risk has the a congress has tools to deal with it right there that is a limited solution to a difficult problem so no budget but if you did have tools to deal with it rather me not you may think this is a better way to go about problematic because how does commerce assess the knowledge of a party that refuses to cooperate all together it's difficult well but the new leader is cooperating and you certainly can ask mueller whether these things are being funneled innovations right there doesn't need to be a an intent to evade the laws ternium can simply close its eyes to wherever its products are going and simply one year is importing x amount to the united states in the next year it drops down to near zero and the same volume has now been shifted to selling to mueller and that amount is going to be able to turn me on has been selling to neil or before and and maybe thirty percent or something comes into the united states and the other seventy percent is going to other countries take knowledge inference the possible simply by looking at the numbers the shift your honor i suppose that's possible but i can't speculate about those particular circumstances that really aren't at issue here what congress did was interpreted its fact available authority under sixteen seventy seven easy to fill the information gap that was left by ternium missing cost of production data the data was very important because to calculate mueller's dumping margin accurately as the statute requires commerce needed this cost data from which was the producer of the products well what should what should mueller have done or what could bill or done that it didn't do to force more cooperation from  construction of the statute at issue here and converses election from the facts available doesn't turn on i'm not answering my question please answer one question what else to mueller have done to force ternium to cooperate the didn't do your honor i'm not aware of anything that they could have done short of threatening not to do business with them and the future  in the future and it's important that we recognize that this case involves the problems of not only missing information but adverse inferences against an interested party that failed to cooperate that the missing information was ternium missing costs so commerce had to determine what does it know about ternium in order to select the best information on the record to fill the gap left by that ternium is missing cost well commers already knew that tern um had failed to cooperate in multiple consecutive reviews out of high f a right and still refused to cooperate and also despite the fact that his predecessor had provided the exact kind of information that commerce had sought here regarding cost of production ternium declined to produce that information within the coalition that's being made here only affects mueller it doesn't affect terms right the cost of production information is being sought for the purpose of calculating an accurate dumping margin for mueller yes and it has nothing to do with turns right that's right that's a completely that's a separate issue because ternium failed to cooperate in providing information relevant to the calculation of its dumping margin thus necessity leading to the forty eight margin so what why wouldn't it have been more accurate to take all instead of cherry picking the three highest tuna sales that is where there was a departure from the sales price and  without getting into the specific numbers which are the sales records are confidential in order to select the most provocative data commerce chose those three tuna transactions because  on what it knew about ternium those were the most pro but if you have a spectrum of tuna a lot that isn't the case that those three were chosen because for deterrence purposes and not because they were the most accurate it was both your honor they were also the most accurate the spectrum of tuna's cost provider linkage and the question was which of tuna's costs were most probative of what was missing ternium was missing so we have to make a judgment about which was the most provocative and commerce in making that judgment consider what it knew about terni did congress say that that was the most accurate here are we cite in the brief numerous instances in the i and the memo and the of the commerce which is give me one where it says these are being chosen for for accuracy rather than the term short even even it parked for actors even in part for  and also on the same page a forty four and i based on the information on the record that insurers ternium does not benefit from its failure to cooperate and also avoids an inaccurate dumping margin for mueller b c we can't know for sure if margin would have been higher if ternium had actually cooperated yeah but what you say on page fifty for example is as we find the other two the cost differentials are not sufficiently high as to effectuate the purposes of facts available will you not find that any of these differentials are high enough to encourage participation future segments of the proceeding which sounds like rejecting the other data because it wouldn't accomplish the deterrence rationale rather than rejecting the other data because it would not be accurate your honor in this particular case of commerce considered all of the statutory bill fairness can't use this other data because it's not sufficiently deterrent it doesn't say we're not we can't use this other data because it would lead to an inaccurate result am i right no your honor i think i believe congress also stated that the other two today was less probat ternium a total f a rate of forty eight percent in the prior review and this had an induced ternium to cooperate during the current review leaving congress to conclude that ternium had refused to cooperate in this case to provide it missing costs data because its data would have been less favorable so what commerce tried to do was to avoid the unfairness of mueller receiving an artificially low rate just because ternium had refused to cooperate it's it's part of the overall decision was consideration of all of the statutory goals in summary converses decision making here as the trial court held was thorough thoughtful logical and complete and we respectfully request that the court affirmed the trial court's well reasoned judgment the converses decision is both lawful and reasonable thank you thank you it please the court out be very brief first there was a question does the adverse inference that commerce applied in this case did affect only mueller and the answer to that is and turn in had a very direct interest in achieving as low as possible a dumping margin for mueller as it could and the reason for that is that the lower mueller's dumping margin the greater the access turning would have to the us market and a question of motivation sequentially would have yes but the point but the point is that as soon as a against direct exports no but the other point that i would like to make is that on the knowledge test the department policy is very clear that generalized knowledge that some sales are going to go to the u s market is not enough to attribute the sales to the manufacturing they then become the sales of the reach reseller and in addition to that  case that is currently before the court this case provides an even stronger basis for the use of adverse act then fine furniture in fine furniture the unity of interest i think that stick with this the commerce says we're going to we don't have certain information from germany and we're going to look at tuna and now it looks at two and says it's got this range of different costs and one thing it thinks is it would be a good idea to choose the worst of those because that would induce better behavior put that aside is there anything else that commerce said in choosing among the range of tuna costs to indicate that we think the ones that we chose these three are actually a better indication of the missing term iyam cost cost information than the ones we didn't choose well i think congress was trying to do two things number one they had no information that syrians missing cos they were trying to plug that hole and they also  needed to come up with some deterrence and that was what they were looking for they saw that i said i think what you just said is not responsive at all to my question i posited is there anything besides deterrence commerce said to indicate that the three to no costs they chose that they thought that those were more accurate on any basis than the ones they did not use a not aware of anything other than congress general statement that they were attempting to come up with an accurate margin for mueller because they didn't have ternium scott and i the other thing that i want to mention is that in the prior at the statue clearly gave commerce the authority to utilize suppliers records for cost of production when looking at an export or i would  number so nobody saying they can't use the supplier cause the question is which ones actions should they be looking at can they cherry pick the transactions to to to use the three worst ones and they can to draw an adverse imprint and i submit to this court that if you say that commerce cannot draw an adverse inference under the statute to the interests of the foreign supplier that doesn't cooperate then in utilize something adverse and determining turning him scoffs then you will get a lower rate as judge shalako is asking earlier it's impossible under the knowledge test under his hypothetical let's when selling twenty five thousand tons directly to the u s and gets hit with a forty eight percent duty and it previously sold fifty thousand tons to mueller which export a twenty five thousand tons in the next year itself seventy five thousand tons to mueller which exports fifty thousand tons but it says we don't know mungo seventy five thousand tons which of those are going to be the fifty thousand tons i can tell you one of the knowledge that there is no way that congress can say well we look at the total numbers and we impute knowledge they're required by their own practice for knowledge to be specific to the transactions they can apply a generalized task of looking at total exports so this case is very important to commerce is ability to require that foreign suppliers cooperate in investigations by supply and cost of production information when sounding like a broken record are you on the same page as i infer it from your colleagues that it's rest just on deterrence yes i believe this rests upon deterrence against ternium for not providing the information that was requested thank you thank you very much person i'm perplexed why a thirty percent difference or thirty percentage point differential between forty eight percent in one thousand percent is less problematic than if they didn't use adverse inference and we got a five percent margin so that would knowledge or congress font found that the producer have to have actual knowledge or reason to now and congress certainly have the tools available to review information that but it's still in some sense transactions specific because that's the way congress has decided it wants to apply it absolutely and in this case what we have is a lack of accuracy and of a fundamental substantial evidence problem because commerce states that it applied a neutral non punitive non adverse inference to fill the gap in mueller's calculation and that the same time as judged like you've identified they're saying the methodology to fill that gap which they claim was neutral was adverse and they clearly state that the methodology they pick they cherry pick three transactions in order to come up with an adverse number that is a fundamental tension that cannot be reconciled and in this fundamentally unfair that they fully cooperative respond cooperate and of an unofficial hated supplier in that case the unofficial it's a pirate was not even a party before congress here congress had a direct mechanism to go after the party that they want to induce cooperation from and this notion that they turned him been cooperate in the past that's true but in the preceding review but in the rue view that is at far they provided cost information it was in perfect cost information they submitted three times the information apartment and they answer to set the follow up questions there there's no doubt that there is information about ternium cost on this record it's not products specific and we understand it so what does congress do that they look at two minutes cost and say what are the differences between the minuscule amount they can't say the number because it's confidential and apply that aberrational different to all of mueller's costs by the way the cost that they say they don't want to use in the calculation so the irony here is they say we won't not us mueller's acquisition costs because we want the suppliers cost the supplier provides the cost of the an imperfect and then because of the in perfection we're not going to use any of the suppliers cos we're just going to use the cop that was that we didn't want to use which was  and i submit that that is a fundamental substantial evidence problem i would also say that there have been cases where the pardon has clark at products shifting in volumes as between people to find certain months and i think there was a case involving sweaters from taiwan that that the department use that approaches it's not a department is without tools to address what they purport to be their concern but it is fundamentally unfair to do to subject  congress has on the record the physical characteristics of what was purchased from two not the physical characteristics of what was purchased returning them and could have done it quite more even handed and neutral comparison and not cherry picked three trend three products purely because they were the highest product that's the reason they picked that it's not fair and that's it's not accuracy it's being picked up three products that generated the highest margin for see my time questions and more questions ok thank you