the court in its third review of the antidumping order and activated carb and commerce assigned our client latte a fleet cooperated respondent and outdated rate of forty four cents per kilogram despite the fact that he had calculated in zero e the same surrogate values are being used for everyone we're just talking about collecting information about the u s sales process is that what's missing an administrative review preceeding isn't involved proceeding values are being used for all of the respondents read the situation the answer is yes us price information because once we gave its information to jacoby and jacoby then submitted that information to obtain supported by substantial evidence a complete lack of evidence there was no evidence on the front i'm tracing data in the review cannot meet any standard of substantial evidence or reasonable ness to support that forty four cent rate congress's rate also was not the part of the statute referring to investigation of well but the question really would be how binding is the statutory language was commerce has said on several occasions i gather that in these kinds of the looking to the mandatory respondents when they have a zero or de minimus but instead will use another process such as the process used here they say that's one reason for that is because the statute isn't directed to administer reviews and what's your response to that they say that they take guidance from that right but they don't regard themselves as downed by that because th stage at the administering proceeding ask congress perhaps collect quantity and value information and backing up what we actually asked to be a voluntary respondent in the proceeding so it asked to have its own information used to calculate  routine for commerce to collect that kind of information as far as the information that shows that forty four cents wasn't legal we did not apply to be a voluntary respond in this case right what we did did  reasonable is first the trend in the margins in the investigation c c team jacoby were also mandatory responded at that and they had margins in the range of sixty to seventy percent then the margins went down in the second review and congress changes methodology and went to a per unit basis and then between the second and the third review margins also changed now that c c is now c c t in jacoby received zero margins the surrogate values bolster the story this that i'm sorry the financial margin would not have been the same as it was in the second review because that he component of the dumping margin the financial ratios went down so it's unreasonable for congress to pull forward that outdated forty four cent rate in view of the fact that we know that when one part of that calculation would have gone would have gone down congress says that it has no data and two on the margin to determine the separate company's pricing behavior but nor is there any information  submitted on the record and we know that the financial ratios went down between the second and third review so we know that the forty percent rate all other things being equal would not be the same another way we know that that forty four percent rate would not be the same is the surrogate surrogate value chart that congress relies on to call to determine that the normal value and that's a good value start shows that those rates are from the period of review not from the last year's review not forty percent rate look at it but from this year's review the statute says that commerce our determined margins every conduct administrative reviews every twelve months and that indicates that congress is intent was there for it to be new analysis is review period information for but only for the portion of product that wiley supplies to jacoby not all of wiley's products so we have part of that side of the calculation we have none information about customers quantity value affiliations it does all kinds of very complicated calculations sometimes it does verifications if it's a huge undertaking and it is  well in the memo where commerce determines that it can only it only has the resources to take to mandatory respondents and it does not have any resources to take on voluntary was my what i want to ask you is what shows  so i don't understand how it can be that commerce can say because we don't have the resources we're not going to come up with an accurate rate that doesn't seem to be very reasonable well that's actually what the statute contemplates you have a statute that contemplates that you are going to have no information about the separate companies that's why the separate companies get in in a normal situation an average of what the mandator had prior cases where if a situation's commerce and in accordance with the statute has used the prior rate and we said that that's reasonable under those circumstances because the that's a fair inference that the non cooperating respondent didn't have a better rate or it would have supplied the information here it seems to me that the basis for that kind of presumption doesn't exist because this is not  a situation and they've offered to give you the information it's true that it's not in a situation and obviously in the hands of a world you have in the statute the congress can look to other segments of the proceeding but here you arguably have something that  all the trial court made factual findings that exceeded the court's standard of review the court stated that the de minimus margins must be considered more representative of the industry wide pricing behavior during the p not only is that a factual finding that the trial court does not have the authority to make it is inconsistent with this court's recent decision in nanya nonny i was very clear that the only thing that congress has to do is follow the statute notions of commercial reality do not fit when and do not apply when you have a statute that gives commerce such life sentence overrule the earlier is that so there has to be some commercial reality no nonny i was very careful to explain that when this court has found that commerces decision is inconsistent with commercial reality it's because the court either found the commerce had made an er mandatory respondents a limb to separate rates which are calculated not on the basis of an investigation of each of the separate rate respondents but based on the the mandatory respondents isn't isn't the rationale that that were isn't that the rationale otherwise it isn't the system irrational well you have the statute gives commerce to train says it can either use the value methodology that used here or it can do a sampling methodology now congress doesn't use the sampling methodology that frequently but in two thousand and thirteen initiated comment and notice for comment it's suggesting that it was going to start using the sampling methodology more and it was going to refine that methodology because this analogy doesn't it allows the smaller respondents to know that they're never going to be investigated or reviewed to basically do whatever they want well then but but if you have a statutory structure that allows rationale for that is that those dumping rates are assumed to be fair for those separate respondents because they are assumed to be jumping about the same rate as the  mandatory respondents correct well i think is not why that is not the basis for saying you can hit these separate respondents with the same average something my remark and i think it's partly correct i think what it is is a crude way so you allow commerce to perform its job within its resource constraints while capturing as much of the industry as it can possibly capture given its resource constraints i don't think we would concede and i know that i know that the court of international trade said that we conceded of representative is that a rough and but roughly fair way yes of assessed ok and then if that's true then what's wrong with saying where you have a comparison between the current attributed rate which would be zero because of the two mandatory sponsor zero you have that to look at versus a previous attributed rape which was not well we actually shouldn't do that and then you have this court case law that even further constrains commerce what you know in the statute says you shouldn't do that when you look at seven thirty five c five b which says you a margins in the zero mark than thirty five c five a right which doesn't apply here right the second part of the statute says when you're in this awkward situation you can do anything else that you want including averaging them so you have the first part of the statute that assumes that these i'm going to call them outliers shouldn't be factored in then you have the second part of the statute that suggests that if you're in this situation you might need to let them and you might decide that it's reasonable to let them in but you don't reasonably reflective of potential dumping margins and wouldn't be feasible i don't see why it's not those two criteria and are met in this case so i think still commerce went through that part of  and and at and determined that it wasn't reflective of and i think potential is the key word it wasn't reflective of potential something margins in the in the you know only in the i and d memo which devotes a total of twenty lines to this whole issue eight they went through that i think it could go to the extent that it quotes the essay it well ok but the the exercise here is to figure out what the if the essay assumes we don't now what these companies dumping margins are and that's why it says it has it should be reasonably reflective of potential dumping margins who are less reasonably representative i mean what what is the basis for believing that these earlier in theory novel forget about the theory is a financial matter suggests that these earlier margins are more accurate than average in that the business market because they bear and i'm using the language not trying to calculate an accurate margin for the period in question we're not trying to calculate an accurate margin for the separate respondents we're trying to give them we're trying to get a pretty damning concession and i don't think it is i think the whole point of the statute is that the separate respondents are not going to get their own margin there's no way that they're ever going to get a margin that actually reflects their dumping because we're never going to have that entered on to use the representative rates that you calculated for the individual investigative part he's not going to and you're not going to calculate it accurate rate you're just going to use something from the past that has no necessary relationship to the current the separate respondent actual dumping margin when we don't have any information which we don't have commerce that this was the next best option and that's it stated policy but you didn't have any information with  in the premier a r so how is that information any more reliable than the information that's available to you with respect to the present day or well at least that information was based upon and dumping right but that other people i guess what i'm trying to say is that for that period of review we were in section a of the statute meaning we were able congress was able to calculate the separate rate using calculated dumping margin and so if you want to think about the separate rate or the value methodology as being represented it which i don't really only like that word but if you want to think of it as a crude way to get something fair in the prior review you had the rate that was chosen from the prior review immediately prairie view was reflective of the potential for margins again nobody knows what the actual margins were going to be why is it more accurate then the current  rate which the mandatory respondents have since neither was calculated for any setting aside while week neither was calculated for churchmen or shaanxi doesn't have to be more accurate there's no way to know how can it be even as accurate since it's not contemporaneous as the current mandatory respondents did and dumping margins it's well it has to be a reasonable they just use a reasonable method which has to be based on some measure of substantial evidence so we've got hit by this investigation with the dumping rate at any dumping order and we're going to comply we're going to not dump anymore and so they go to zero well why isn't haven't they earned investigation it would be an important data point which is why i think the statute says that you can average them in an investigation where that's the only information you have because you have no other prior information you can rely on in a review the agency has prior experience in this case had two previous reviews and wesson fair value investigation in which there were no evidence that any other responded previously ever earn if there was some homogenous nature by how these numbers moved me congress made it eight hundred s made a determination that if we put it if you calculate an rates are entitled to that commerce was entitled to make under the statute congress gave them the ability to choose between the less contemporaneous more specific companies that may place full responses on the record so the position of the government is we will shine anything you attempt to put on the record and it does take a lot of effort and time to gather only a cost and sales information and so in this case can always go back and get more information but you can't make a decision based on this record based on no information and so we just think you know they were given multiple opportunities and chancy d m d s position in this brief was that congress was not compelled to do any particular thing and the judge left it wide open to even open the record up in any way they set off it and they chose not to do it and they delivered to minimize margin so we hope the court could simply affirm on that basis but we also you know i'm very glad of the teacher what i've all discussed here that when all the margins are up and de minimus then that department has the opportunity to average those and they say indicates you know unless they wouldn't be a reasonable so we think what the trial court nearly did is go back explain and explain why the contemporaneous record is not reasonable when you set up the statutory scheme you decided to select your respondents you decided to shun all other information in the case that leads to the only logical conclusion that they deemed that that that selection of the two response was going to be representative of the parties they had no interest or ability to review in detail and so they they just don't like the result if that you know i wonder if the courts where an investigation to minima says two point zero margin points right in a review it goes way down to a point five half in point five so we have a very high standard if you can get to de minimis and the two largest exports got to the minimum and now they don't like it but so if you can one of them had a point six they would not sampling f r notice for comment to do more simply and they've done almost no sampling since the two thousand and thirteen notice and the criteria in there says well we fact first pick three respondents in the criteria so guess what now they're not picking three respondents ever because they don't want to trigger their sampling methodology because they don't think they have the resources review three or more respondents so we're stuck with this two largest export of formula in almost all of our cases and we sure love to get some guidance from the score that says you can't say that's totally a representative just doesn't dips to point five and so i mean i don't know if the court has any questions for me but i just think the statutory scheme contemplates you might not have information about the separate companies and that you're going to capture either statistically valid sample or the largest group of sales you can gather which is usually the two largest formalin it usually captures sixty percent of exports they usually try to meet that barrier i can't say on this record whether they hit the sixty percent but that used to be their policy that will take that use largest or up to sixty percent and over the years they just the expected method is the one method called out in the statement of a ministry of action that considered the authoritative interpretation of terms in the statue and as the as the lower court to treat quickest and it's unreasonable to take that one v and and that that shows that illogical position of the government that are really it may be of the statute that when you have a five cent rate that's ok but if that five cent rate if that rate goes below minimus and for our client it's margin increased eight fold that can't be a reasonable outcome in view of the other objective criteria we have which are the decline in anti dumping margins since the order all the way down to the start review and that decline in over specificity here they're asking for the opposite and it seems like that's really in order to shut the book on the purview period and so instead look back to what happened in the prior review period just to give our client a margin another another factor i wanted to bring up is that it's not even really correct to call the prior review period temporally proximate to this review period when you think about the fact that the first month of the prior review period is separated by twenty four months from the end of the next review period south certainly it's reasonable to conclude that freight that prices change that sort values change as we have already indicated and and for that reason because there's no evidence on the record indicating that that forty percent rate has any connection to the current period review and we ask that you overturn the trade court is it your understanding based on commerce this policy is articulated in the frozen shrimp than frozen fish filets cases and so forth and in this case is it your understanding that if this case went on and had five more administered reviews and jacoby and c c t were the mandatory respondents in each of those and it each of those back to the prior years review and this kind of circumstance so that if we carry that forward yes it would seem that commerce would do that each time but it also says that it decides these cases on it makes that decision on a case  review and then justified it very next ministry if you as having a m r a particular margin based on the fact that the attributed review for the previous year which came from the year before th two minutes and then from mr berger thank you just picking up on where you left off in in the brake rotors determination and commerce kind of history i was looking at a dumping history for the order over the course of eight years and i'm not i'm not totally sure this is accurate but i i think it was almost a full eight years of no dumping and in that situation congress looked back and said ok that is it's not reasonable not to average th whether all we have in terms of legislative history is the statement of administrative action and i will say though that a we use the statute in the essay by analogy for these administrative review this it is important to remember that it was written for investigations and it technically applies for investigation so when you're in a situation where you're trying to figure out whether there's been dumping me maybe it makes sense as a as a mathematical proposition to throw out the high and low when you're at the at those initial initial stages and when you get to the essay you also have to remember that it's quite possible that congress and the administration were assuming that there would not just be to minimize and zero margins there would also be and they margins because if you don't is the explanation for the part of the statute that just applies to investigations so why in an investigation when the investigative response office or a margins is that the end of the investigation but in the ministry of review do the same thing happens you know you don't use the venomous mar so in it in an investigation if there are rates calculated and there are no dumping margins calculated then there is no basis upon which to issue an order i'm not sure i understand the zero years with zero rates commerce still has an obligation every five years to do a sense that review and determine whether there should be an order so if it's sort of accomplishes the same thing thank you  thank you in looking at the statute quickly the statute taken as a whole is disfavoring using f a and using the de minimis and just picking up on a judge takes last question burden is on the government and the messenger to demonstrate that dumping has occurred in a review there's something of the shift now the respondents data is being looked at to determine having already been found to be dumping whether that dumping has gone away and yet or not but commerce isn't giving the not individual investor parties the opportunity to show that they're marred and so cheney and congress said they didn't have to give it to everybody because recognizing that it would be an impossible burden i mean i have cases where there are hundreds of respond to certain hundreds in this case there potentially could be dozens but everybody was here today but one of them has had a chance to demonstrate that they weren't dumping by looking at their actual margins and not one of the mass in the past so commerce recognizing that congress gave them a choice when i mean that none of the non consider their data this review is reasonable because they didn't submit information and some previous or the statute is set out in such a fashion that they don't have to consider all of the recognizing that would be impossible for commerce to consider everybody's data the outcome based on what the lower court did here would be that in every single case you would always have to use a current data no matter what the statute specifically sense congress can use al i don't think that i think the point is that if you're going to use the prior data you have to have some reason to believe that his representative what the current date is and this record commerce hasn't been able to point to any reason to believe that the margins for the  investigative respondents will be accurate for the current period there's also no evidence and the court below said there is absolutely no evidence to tie the pricing of these nine of s k respondents to the pricing of the of the respondents who w