statute doesn't view one of these as more important than the other you should have all three of these criteria met in the circuit country so if approaching it this way is going to relock end up with a country that's not a significant producer or doesn't have the best quality of information there needs major issues in it in the philippines and so our argument was ok this is the exception that the department should have to consider india we're not saying that this court has decided that india was the best but there was enough lacking information the philippines this needs t trigger that exception and the department needs to weigh both countries and to the extent that the department did address india they kept going back to that i cannot compare ability when they looked at the data quality they said well those chemical  aren't as high quality because india is less economically comparable so that's what this analysis says that it's conflating economic compare ability with data quality and so then there could never be a country that's data quality could overcome economic compare ability factors of production and clearly it would seem to me in that case lichtenstein would be taken out of consideration and maybe and the are some other country would be considered in this case isn't it the case that commerce  didn't say that the economic comparability isn't the only real question but they said instead that having past economic comparability and in the case of india having failed economic comparability we will look at whether there's whether the day that is good enough and they concluded that it was good enough in the case of the philippines where you have thirty eight out of the forty factors of production present in the philippines that you had what they consider to be is a certain number of countries count as an economic come economically comparable and you're not really fighting that as as i read your brain now we do you as we discussed that there are reduced it's not the most reliable indicator and so the fact that that's the most important thing we took issue with but not the general process of the west so once you start with the idea that china's i think that india is off the list then isn't it just a question of whether the philippines has a convincing enough case to be made for it being a surrogate country even if it is not necessarily the ideal surrogate country in the sense that as much as there may be other it has some data for the chemicals and things the partner did rely on it was lacking in major aspects and the department prefers to rely on one country for the whole  sort of country muck it up for one sort of country because all of the circuit values that are mixed with each other with the financials they prefer to rely on one country and one that's a significant producer that has the highest quality for the most important inputs needs of a country that we have argued is not as comparable of a producer doesn't have the most important and put for con tight least its financials it only has one as opposed to five it doesn't have a specific chemical in put that doesn't the should be the situation the department does consider a country that's less like an obviously comparable the philippines is not only does good it's a significant difference here and the statute does not prefer economic compare and the department's not and this is keeps happening over and over again it's not just in this case it's in other cases where the primary country that's on the list is missing major importance and their partner won't consider a country outside of the list they're sticking to this list even when we're coming up with data issues over and over again and that's why the department has a succession it's their own words that certain countries that are not at the same level of economic development but still at a level of economic development comparable to india are selected only to the extent that data considerations outweigh the difference in economic development that's the part mince words they how this exception but it never gets used to resale like one is going to get use because we want an accurate margin that's based on a country that really with respect to your real issue is really whether there ever it it should have gone beyond the initial challenge the commerce and its final results announced that there were two possible surrogate values what is referred to as the b a s price which is the bureau of agricultural statistics price the retail sales of the fertilizer and the import values for gilliam that is a major let me just ask a question that maybe is more procedural he said but the question is really whether it should have gone beyond the first proceeding is that really the question that is that there may be two quite different questions one is whether the c i t should have ended on this issue the first time in the second is whether the the new decision is was properly uphill both of those things could be true suggestive of each position why doesn't the government when there is a small record there is in fact nothing suggestive of domestic production in the case brief or in the initial in the brief that the government filed with this court they for the first time straight to some percentages to try to argue that fourteen percent of production was domestic at the c i t they said eight percent but those numbers don't work they relied on percentage of us but in fact in the record where they pulled those percentages are the numbers it says there were one point seven million tons of fertilizer sold in the philippines of which thirty two percent was furious that's five hundred thirty five thousand tonnes but there was eight point eight million imports fertiliser of which thirty percent was you maria or two point six million tonnes in other words there was far more imports of your real than there were sales of your react as fertilizer and in fact we're not talking fertilizer we're talking chemical use but we're dealing with a fertilizer of what's called fertilizer so there is now that if that's their support for why it's reasonable to infer that there was domestic production why is it reasonable to infer that there was domestic production they haven't cited anything their only  is while there's no statement that says there was no domestic production but there is a statement that says your real is imported ammonium sulphate this both imported and produced domestically and foss phatic and fertilizers are produced domestically  you can't just conjecture that there might be your real production what just this wasn't discussion the preset may not be legally particularly pertinent but just a curiosity what's the  guess in the few seconds i have what here again commerce changes methodology between the prelim and the final are issue and concern has been the congress has never stated a reason supported by right with a rational relationship to the ingredients that you buy products coming coming out and here's a rational reason they said the ammonium sulphate is sold for less than we would then the sum of the two ingredients into that if we follow the old method that cannot be why is that irrational because they have a capping methodology when that happens they have a specific practice when that happens we cited four cases where they even call it their practice and that is to base if they're going to cap because a circuit value on a by product is too high then they cap it based on the average of the input value of the values that go into making that by product they did not do that here they've never explained why that happens inappropriate and said they just that we don't have a practice but if that cap had produced a number that was higher than the ultimate sale price of the ammonium sulphate why wouldn't that capping process the and as i will address further here the court of international trade properly sustained commerce is results on these these three issues and its decision should be affirmed turning first to the primary surrogate country issue appellants broadest it a challenge to this issue is essentially an argument that commerce is required to make a comparison between countries on its list of economically comparable countries and countries that are not on that list are at that that position has been already squarely  addressed by this court in the door best decision and rejected in that case the court said that the statute requires commerce to use data from economically comparable countries to the extent possible and it concluded that there would be there that it would therefore be killer for congress to use data from another not market economy country regardless of its economic comparability without any finding that data from the economically comparable countries were unavailable or otherwise so that issue has been resolved and accordingly all of the parents brought attacks suggesting that there needs to be that sort of comparison should be rejected and turning to their new challenges to the selection of the more let's say hypothetically than the philippines industry in this case nonetheless had some modicum of production that that would be usable and that therefore commerce would use that country if it was on the list where it is just described significant to mean a noticeable ear measurably large amount i think that is that's the language that comes up in a case called one chunk a tie versus united states  i think i think was mis salsman who said something about the philippines did not produce the most important or some of the most important ingredients and subject merchandise here can you elaborate well and how does that relate to the two of forty which i think was sufficiently bad as a source of supposedly best available data then you have to look back at india why or why not his the philippines sufficiently bad as a source of the data in this case well what they are referring to is the fact that congress has indian data for to thank is a production and chlorine and hydrogen and commerce had explained in the in response to this argument that  used the phrase something to use the word important i think to describe the korean was a high five hundred seven hundred you can you put a number on that five percent namely two out of forty that doesn't sound important is there something like those two factors of production accounts for ninety six percent of the cost of production production and the other surrogate only remaining for what i certainly didn't hear that i i'm sorry i don't have a sort of way to quantify that but at one point commerce seemed to think they were important i guess the first time around and then the second time around commerce said well not so much  don't think they're important but neither time did they really much by way of why they thought they were either important are not important if you can you give us some help on that what was it that made them think the second time around that they weren't really important your honor i've seen that language they point to any it doesn't elaborate beyond this the statement that it is that congress at that time did seem did seem to think that other two factors and it also explained that reliance on data from two countries is permitted by the statute which which allows commerce to select factors of production from one or more countries where it says tradition of solving that problem through capping and you haven't given a good reason for not using for not following that tradition here right well i mean the parties view it differently as to whether congress has a standard practice or not  see our us as having been doing record based capping of record based adjustments in the past where value seems to be anomalous or off in some way but regardless congress is permitted to change its practice if it gives an explanation of acid were enormously high compared to the final byproduct if those values had been correct they would have never used them to make the final product they would have sold the direct by product instead because it was worth far more under those surrogate values so they decided these values must not make sense so we'll use the value of the downstream by product instead and so that was there that one of their explanations their other explanation is that there just just to be clear about what's in my head it seems to me that's an extremely good explanation for not directly valuing the ammonia gas of the sulphuric acid but that doesn't yet say anything about how to choose between two different ways of solving the pro that doesn't sound right so instead we're going to limit you to the value of the initial input it's doing the same sort of thing this doing here it's making a choice that it's going to limit the value to a certain other number that seems more sensible under the congress has determined earlier determination that a reference is that that data is at least specific to your real no the issue of domestic production document again is that i'm sorry if that to document that is riyadh congress references its earlier determination that it did and and there's no question about that the other issue is the conclusions they're drawing about whether this data is domestic or imported and as we went through in our briefs you can and you can draw conclusions from the articles to see that there is some domestic production of your real it's not the best something that you can derive from that information to see that there is domestic production of urea and so congress made a reasonable determination to use these numbers and of course the issue is could a reasonable could reasonable mind decide that this was the best available data and and the court properly concluded that it was thank you very much  bay cost is a pretty big factor let's say top three or in fear i mean i should actually just to it's a chemical manufacturing process so there's also overhead and other factors so to answer your question so interesting when he went off on the issue of is it rational that the downstream byproduct of moving sulphate would be lower price than the inputs so remember incorrectly my understanding was that congress had a very good reason for not measuring the ammonia value in the ammonia gas and the triple i'm sorry yes and the independently but my own my understanding also was that that leaves two choices some some kind of capping choice forget about whether that's traditional or not some sort of capping choice and then the choice that my understanding is congress made which is look at the value of the actual market value surrogate value of the amount and sulphate figure out how much it cost to produce it out of basically it's two ingredients and subtract that and what's left that's why what's the rationale for commerce having chosen between those two things that both of which are different from directly directly to you in the money or cash so  gas and the so if your council were not measured in the in the ordinary course by these companies were not booked in their accounting records to produce the volume of production what they did is they ha product that was produced ammonia gas so if you're a gas it and it was used to make one step further a product that was so so for a few administrative review as they used to be well used the production approach would just take the quantity produced here they focused on had they said you know we're using an estimate of what you produced based on this downstream product that you sold and it also has these volume probably these value problems the values are upside down so why don't we just the lower court was satisfied and i think the record shows and could quickly on the third circuit what is the best evidence for the proposition that there were some in your ear production in the philippines  is that a reflection of only domestically produced curio or as the b a s does that include in your area that may have been imported but that is sold in the retail domestic price converses preference is to use domestic prices or just imports the right said to be the right going one step back from that i understand instead the argument about price but in terms of establishing whether there's actually any domestic it's yes categories they cover goods and if we don't put a quality as a chemical quality real or is it agricultural quality you really don't know the solutions training for so forth so commerce in percent imported urea what what's the rationale for using only domestic prices or push the import price since presumably someone who's in in the philippines who is making the ultimate product is going to be buying at import market if the retail price is much higher that's not the presumption in fact a propos of purchaser in the domestic market would have to pay company that so you're saying that the the b a s is actually stripped out of duties and taxes and that the  would it under represents what a producer in the philippines would actually pay for the rand you know the producer in the philippines if they bought imports would make billions in taxes if they brought in the domestic values suffer from various problems so congress has a preference that it's reasonable it's not really been a tough act what's been attacked here is that evidence which as you price is really not representative of what a producer in the philippines would actually pay for your if they were if they were saying what's the cheapest price we can find for your area and somebody said the g t a price is x they would say so they assume that sometimes import prices are themselves look below market and are very low when they're trying to construct a fair market value they're looking first at what this made in the domestic market from an is widely available publish and represent a large national database so it's reliable when i was responding to was your hypothetical that or hundred percent of the b s data might have been right so it wasn't one hundred percent or not i don't think that dubious in fact my position in my papers is the opposite because the ending of the philippines government subsidizes industry i think  domestic industry did grow up i think the sites that have been made about imports are too old the data go back to ninety nine he said and so certainly given a published price t available and has multiple financial statements available it's a much more comparable surrogate for china and this case and those facts are on this record and why we're not telling this court to direct the department to determine in important imput and has driven the department's decision and certain countries multiple times so that's the main thing that we're asking this court to consider is that this exception exists in the department should be following it so in an ideal situation in most reviews a country in the g and i band is a significant producer and they do have available quality of data but in particular circumstances like in this one if you're ending up in a country that's not as significant as a producer and you're reliant on a country that doesn't have the best available information so following this threshold is resulting in and results that don't feel the statutory requirements the way they should and some are asking this court to consider that this is a circumstance opportunity to look at that list and determine whether a country on that list was going to provide the best available information the apartment itself decided that it needed extra information from india because there was lacking information and so it was between the philippines and india on here and say that the philippines is problematic enough just to reiterate like the end it there is a complete and i mean the indian record is not just a few inputs i think  statements chemical weekly we have a robust indian record here and it isn't just climbing but again its core and i say here ice is critical it's also though five financial statements in india first one that the argument subsidise in the just to touch for a minute or so on a few of the statements that were made about what evidence was on the record with respect to riyadh there was a statement that the courts underlined quote the lower level court said well ninety two percent of your i imported the lower court did not say that and in fact for the record says ninety two percent of philippine fertilizer requirements are imported in two thousand and ten the year before we're looking at here there's a lot of fertilizer here it is one type of fertilizer nothing about that statement implies that what's important is fertilizer particularly when you combine it with the other statement about what was in you know what was important what was produced domestically ammonium sulphate last phatic fertilizers the record shows those were produced domestically another statement that was made was well we could it was well import data is not good because we don't know what it's used for it could be used for fertilizer could be used for industrial purposes well in fact we're looking at an industrial use here and the that is fertilizer sales at the retail level can kill his your question and that i guess this prompted particularly the discussion with mr cannon did commerce rest its determination about using the domestic philippine furia price entirely on a finding that there was domestic philippines into the philippines from outside in the rain and decisions they realized that it was totally on the ability on the possibility of domestic production this concept that a domestic prices any price in the market regardless of what the source of the input is has come up only in the court litigation not in the remaining decision but in subsequent briefing can i switch topics  question that probably i should have asked you before describe in a concrete way what capping is can be is calmer when commerce determines that because you don't just try to describe how capping would work with respect to the particular neck which is somehow that's the way you would cap it under the congress's normal methodology would be to look at the surrogate value of the input so you have to look to the your real surrogate value well certainly if you're using the important surrogate value here well you're below the value of ammonium sulphate so in capping they would have kept it at the level of the surrogate value for your real they would have just taken the volume produced of ammonia and the volume produced of recovered filthier cason and valued those using essential of the urea circuit value if you had more than one byproduct of this one things you said well yes they use a chemical formula but that they don't really know what they do know the chemical formula to moeller based molecular and congress has no problem with it because they continue to use molecular formula to determine the hands other to buy products which also are not directly sold but are used to produce other products and with that thank you