fine furniture presenting argument as well for the other and the pounds in the ended up in case on multi layered would foreign commerce chose three companies from among a pool of chinese exports who answered quantity value questionnaire to be representative of that group yet one of those three companies got zero dopping margins congress refused to apply the average of those under congress's expected method to the other cooperate in companies much justified its refusal to apply the zeroes to the nonselective cooperate in companies and to bases both of which must be rejected first commerce look to a later time period when congress conducted an administrative review congress commerce with three three or four terms there have been five decisions of the trade court on this case including some related to one consolidated plaintiff who  to separate commerce that fell this normal process at the beginning of the case and they but they still have to decide who to examine to determine dumping margins so they send out quantity of value questionnaires and then make them available as does matter and that is under the law and under commerce is a view of chinese cases those hundred ten companies are are the chinese government they are the p r c right entity they will never get the result of the expected math trying to say we've got the eighty companies here who came forward and proved they are not part of the hundred ten these eighty companies we selected three they all got zeros and expected method and the whole idea of representative  what should be the rate you apply to the others in the asian companies and i'm not quite hearing the answer to the question i'm trying to ask again about the china white entity focus just on what is it seventy nine companies that responded and is that the number that was found to be independent of throughout the course of the case the number has gone from seventy nine to eighty one depending on who has not yet met that there are the companies that answer they sent into the us a majority of what was sent into the us or not we know that commerce chosen because they were the biggest that doesn't answer the call ok no we don't know that they were the majority we don't know they were that the better reading in your view of albemarle is that it doesn't matter whether they're the majority that anything that satisfies the two conditions for using either sampling or the largest number means there's a congressionally established presumption of representativeness and they have to rebut it and they get that's correct and under commerce a sampling statute they can either do statistical sampling which they did not do in this case or congress says pick the the response representing the largest volume until you reach the point that it's not practical practicable to continue using more member commerce starts on all this the law and adobe t o says you're supposed to examine every company individually the commerce has no we do not have resources to do that congress gave them the authority to select a smaller number including the largest volume which was the specified language and congress did that in this case it picked three companies who  perfectly representative so long as they were dumpers once they don't want to drop a low demand of us then suddenly commerce has a lot of questions about whether they represent the whole industry and they make many inferences about these hundred ten companies but i would just emphasize again that the representative ness of the average that you are seeking here is should be representative to those who are going to get it or not the one hundred  we understand your argument but do you explain what do you think commerce should have done back at the time when it had the information from the three mandatory respondents and realized that there were over one hundred exporters that hadn't responded and they had a suspicion that many of them or at least some of them could have potentially become a mandatory respondent if they had responded and therefore that would respondents economic reality what should have done more than what it did which was rely on a set of inferences well but it is a this is a frustrating point because they they didn't about i guess the question is if we follow albemarle yes the requirement would be that commerce has to come up with some evidence that shows why the separate rate should be different from the calculated rate from the mandatory respondents i'm asking you what are some examples of what that evidence is or should be think the evidence that they i can't think of evidence that they would gather from the hundred ten companies who had already refused to cooperate in the case and so it's truly a hypothetical that would never occur and it happens in every chinese case that there entities that don't answer ok so  responses ok so from the ten they picked three mandatory respondents and then let's say they're at the minimum under those kinds of skewed circumstances where there's three hundred ninety other exporters out there that didn't respond it seems that seems a little much to assume that these three mandatory response that were chosen truly are the three largest exporters when you can't possibly know that when there's three hundred ninety s but that the purpose of the expected method is to find a margin that applies to those within the pool that you're going to apply to so so i guess where i would say is if if if commerce said everybody who shows up in this room today through council and gives a quantity in value we're going to select from those companies and the largest and they do so those three get zeros we don't care about companies that never made it through the door because they're not going to get the expected math that they're not going to get any absolute calculated based on what congress has is asking them to do commerce congress is not saying calculate the margin based on companies who can never get it  think about representativeness in terms of companies who who are deemed to be on representative remember that the whole idea of separate companies is that these companies are by law separate from the hundred ten who didn't answer they have nothing to do with them so what ever those hundred ten companies are doing that is part of that china wide entity this came up in the fine furniture argument about about the people here i think it's your position as if there's one hundred parts of the record that they would have wished they full or more fully developed they are still stuck with their method and here they're not stuck with the math and they're actually asked to follow the expected math and congress says they expect  very easy to apply zero say did it following this court's decision album is not feasible it's just not on the table the second is would it not would the zeros be not reasonably representative of a potential dumping margin of the cooperate in companies commerce is really flip that standard here and they've said there's a potential that they might have dumped but if you look at the s a a strictly speaking it says no this is your own so you have to find that the zero the average can't be a evidence the commerce in your mind would need to in order to show that the separate rate respondents are not behaving the same way as the mandatory respondents well i mean commerce struggled with this issue already in this case and found that there was nothing about hypothetical i don't think there is evidence that they that they can they can gather full responses from all the companies but when our client actually gave them that they said we can't consider it we won't consider it so that would justify moving away from the expected method it's obviously contemplated right in the us as a that there will be circumstances to that effect i'm asking you what it is i'd have evidence that would justify justify changes from one pew time period to another and we don't really have that here because we are in the context of an investigation so there is no prior time for it this is the one time when the law says we're looking at your behavior and and if you are not a non dumper if you aren't dumping you're going to be excluded from this case this will simply for you time runs out of struggle has question i guess and this is not on the main question of the question we've been discussing it's not even on the second fine furniture specific question about your own data but on this point i think you object to commerce having said the above the minimalist but further but not otherwise specified amount i don't understand maybe you can explain to me what the practical consequences of this dispute is liquidation will what i mean i was thinking about this is outside the four corners of our briefs i will say but but every year important has to apply for a continuous import bond and they continue simpler with customs  based on your imports during the past year times the duty that would apply so these importers when they go to apply for a surety on a customs bond what number do they tell the surety if they tell them we have a number that has  we don't have to do our job and can't get a margin it's it's high we know it's up and that's all that matters then that's just giving them license to make the kinds of inferences that they've made here which are provided by information on the record that they refused to look at consistent with the statute that he relied upon for guidance took to quickly answer judge trying to ask question about the practical implications at the split there really are not all of the cash deposit rate happened superceded by the that that in that the that the resulted in that occasion aren't still subject to judicial review but just in terms of the practicality of why does it matter whether it's  court how long that in that particular case the individual e examiner on and they are did account for a majority of the market during the relevant period and this court concluded that they were representative at the very least in terms of aggregate volume but the statutory point it made was that if you look at the two alternatives congress gives in six hundred seventy seven f one c two for examining everybody individual individually when you do either one of those congresses conveying the idea there representative now that neither one of those depends on there being a majority so i take it that the alb e statutory analysis is that if you fit under sixty seventy seven f one c two you have the presumption that the areas that the mandatory respondents representative of the other separate rate respondents and you need therefore to have an affirmative reason commerce to say here's why that's not true for this particular separate r believe that they were in fact representative of the mandatories were in fact representative but also because in the context of administrative reviews there's a heightened requirement for contempt for any and so this the court distinguish that from an investigation in which the question is much broader the question is simply is there dumping or is there not something i'm we're examining the second part you're talking about doesn't wasn't that part of  union talking about whether the chosen method by congress was reasonable not whether it was appropriate to depart from the expected method i mean i think as i understand there were two pieces one was ok to depart from the expected method and do if so was the method that they picked using you know a different review period data to compare was that reasonable and so as i understand it what you're saying is the reason why we don't have to depart from why we don't have to follow albemarle which seems to bring up a strong presumption of using is expected  seems i guess upside down to me to say that the ones that didn't respond presumably didn't respond because had they responded they would have actually had a a worrisome l number to imply that that inference carries over to the ones who did respond so i'm not sure why what would would what one would plausibly and for about the non responders tells why there is an unrepresentative ness with in the group of responders that doesn't apply to that you have a separate point about what happened in the first administrative review but on after all respond the answer is that the one hundred ten companies that didn't respond we just don't know we don't know if they so their failure to respond zero two one two three congress explain that failing to take out into account the experience of that to look only at the three minute response would be to fail to take into account the experience of the vast majority of the companies who are subject to the investigation so the answer is that as i can explain it is is that we just don't know and that was that was the factual record that congress was left with with that in determining whether there whether when determining the economic reality of the separate responded that it was more varied and then would just simply looking at the mandatory respondent suggest conclusion with reference to the results of the first administrative review in which there were respondents in fact fine furniture who was determined to have a positive dumping margin and that both relevant and permissible for two reasons one although this court in albemarle and in an other contacts have not approved of congress looking backwards when when the issues contempora that there's a need for specificity during a particular time period this court said it is not correct to look backward in the context of an administrative review but in the context of an of an investigation particularly where  the time period for the first administrative review starts at the date of the preliminary affirmative determination that is while there is still an investigation going on there is a closer connection to the between the investigation and the administrative review and we also know that the this is a plan of an order we any can use remind me what is the overlap of or disparity and overlap of the periods of the first administrative review and the investing period of investigation and the investigation period was between april and september of two thousand and ten the preliminary firmat of determination of the investigation was issued in may two thousand a lot and at that point cash deposits were were required to be to be made on on subject march and i filed and then the time period for the first administrative review runs from that date from may twenty sixth two thousand and eleven through november thirtieth two thousand and twelve so there is a several month sort of overlap between when cash when the when companies are least preliminarily subject to cash deposit the positive something marginal determined there is that some kind of is a take account of the whole period so that it is at least possible that there was a moment during the overlap period  of review in this case it's really to corroborate racked so if hypothetically we were to disagree that the lack of response  wouldn't need to reach the question of whether it was appropriate for commerce to then corroborate its findings by relying on they'd have a different period of time compared to the investigation period is that right to reach the sole question of whether and unspecified rate that's above the minimum this is appropriate or inappropriate because we with we would have a centrally vacated that all the subsequent reviews will be wiped clean and our clients have deposited tens of millions of dollars of duties too much during the whole time we're in the fifth review we started the fifth administrative review our cards are still on this to petitioners have to file a new dumping case because we're fair traders just like the three who are representative of the pounds here and i would say that reliance on the first administrative review is particularly inappropriate in this case last you have held the government wanted to stick within the period ok but here they want to go outside that period or what happens when you go outside that period in the first review congress came up with a new reduction from the u s price of eight percent that off the top that means eight percent is being added on to dumping margins in the first review that wasn't part of the calculation in the investigation account got a five point nine two percent fine furniture layout a company who commerce did exclude an escapist through the course of the litigation got a higher margin of fine furniture and the plumbing a result the one moment when you had a direct side by side comparison between a company the commerce i was effect trader and fine furniture our client we had a lower dropping margin and now we gave a full dumping margin or an investigation showing we were not dumping all this in francs about what might have happened what might hundred ten companies they're not a part they don't represent a large percentage of they are a number of one hundred ten that we don't know that that that means it's a big number it might have only ship plywood which comes under the same h t s cars and so them i can answer question on foreign commerce says that they are the vast majority that might be based on a count of number of companies but there's no volume information or case you actually considered and rejected this here come on i'm page thirteen fifty three about morrow the government argues that quote the possibility that the pricing behavior of the largest exporter sought to for individual examination may not reflect the pricing behavior of smaller exports but there is no evidence here that the larger sex workers are not representative they have given you nothing here how to answer that there's a court there's a company standing here me representing them who gave every last living thing you could given this case including a calculation using that surrogate values that the c i t approved accounts before you today thank you very much so we