corner honors again the issue in this matter is considerably more straightforward than some of the issues that are connected in regard to the p r c white and it  regulations that were in effect at the time all legal arguments are required to be in the opening brief we included our arguments in the opening brief and the department rejected that argument as being unkind to our fundamental complaint contention is to submit something by the established timeline and then have it rejected his untimely is inherently on research so in arguments would have to be made there no regard to their arguments as far as the so called established practice they point to three sources the final modification that was published in regard  to the new changing methodology they point to other prior cases of their prior administration review cases and the third source that they point to is the practice from original investigations ok so before you get into attacking each one of those separately even if each one individually might not be enough why couldn't the three of those things together along with the limitations on commerce and ability to take extra time to review these proceedings be enough to actually put you i'm not sure but it's your honor when you put them all together what you have is either an absence of any expressed time line together maybe that provides notice or that could amount to a practice if you put all three together it's either silence on the issue and final modification or explicitly rejecting the idea of time and similarly  final modification doesn't provide a timeline the prior administrator reviews explicitly reject the timeline and in regard to maybe whether the practice in if there is any uncertainty as you were referencing the very fact that there would be uncertainty would undermine the government's position that there's an established clear practice and that's a different way what we did is we followed the standard rules of the road better stablished by the department and which are very similar to proceedings before this court or any other art court facts are collected there's an opening brief where parties make their arguments which is what we did there's an opportunity for rebuttal brief where the other side puts in their arguments contrary there is an opportunity for a hearing and then the decider of fact issues its decision that's exactly what we did hear that our arguments weren't rejected on the merits they weren't even considered because they were deemed to be untimely even though they were included within the timeline that was explicitly provided by provided by the government so one other  arguments or our argument was so complex that it was excused from considering it at that time and i would note to begin with that arguments in regard to that the government makes in regard to being unduly burdensome are very clever and tricky and could be a trap for appellant in that if you don't respond to the arguments of the you can be deemed to exceed it if you get into a factual contention in regard to where you went for months to consider this then you leave yourself open to an argument that says that you're making attempts to dictate to the department how it should allocate its resources and that's not what we're doing at all what we're doing is our contention is that we bade the rules of the road that were staffed by the what the department told us when our so after all the factual evidence was collected we submitted to our arguments consistent with the timeline the requirement to include all of our legal arguments which is in the right and then our  just a theoretical issue we know in fact that they do this and how do we know that they do this because they did in this case there is another issue connected with or valuation and after all the briefing was done they decided that they wanted to look at that issue a little further the tional comments if this was particularly complex and they wanted additional arguments they were certainly free to do so we're not recommending or arguing that how they should allocate the resources what we're saying is it's fundamentally unfair to reject an allegation or arguments which are as on timely which are included in the very brief for the time line that's established by the government  be that they had a regulation and there withdrew it they did in fact have a regulation previously in regard to targeted helping which they withdrew so i think which also further supports case so that regulation was removed it's explicit statements in other decisions said that there was no explicit earlier timeline for in which these arguments needed  made so the only regulation that remained that was still relevant was the requirement to make all of your legal arguments in your case brief which is what we did stated in the brief there were however three sources from which there there was more than adequate notice of what the department's practice was with respect to handling of these allegations which involved a lot of data analysis and which require both parties have the opportunity to comment not only on the allegation but on the results in order for there to be a robust process and that was the reason why it was designed to be done at the preliminary stage rather than at the final case pre stage if it your position that somehow because commerce in this case announced that it wants it earlier that that's a not to twelve as you can see and i mean you've said repeatedly that that doesn't give any guidelines if it doesn't for all of us going forward but it does say that the reason why we're going to i think it was sixty days after the effective date was so that everyone would have the opportunity to comment on the methodology prior to the final reviews and those particular investigations which emphasizes that in fact it is important for people to have the opportunity to comment on preliminary results prior to final results from the final modification explicitly applying here we're not saying there was an explicit deadline it was stated we're saying that this was part of the set of information they gave adequate notice that the time to make targeted dumping allegation which requires both sides becoming an arm lot  that's not quite right the question there are in those two determinations was the number of days before the preliminary results was arguably less than the number of days before you would have to file your targeted something allegation under the statute for an investigation so if you're fifteen days i think it was in the turkey case before the plumeri result was that still acceptable even though you would have had to file that i think forty five days before the preliminary contain no guidelines on the filing of a crest to apply an alternative comparison method so why actually did those cases not actually support to alter the opposite result well the statement that it was that the the reason they were accepting the target dump that yes congress looks very carefully at the question of whether something was filed before the plumber mary results in deciding whether to take a target up allegation those provide data points that were not out there  plenary results in order to depart from average to average or determinations that doesn't automatically mean it should be the opposite in the context of results absent some affirmative indication to the contrary and there is no affirmative indication to if you want to look back and justify it after the fact but there's nothing in those cases that says this is why we concluded that it was reasonable in these case respond in their case briefs to our allegation that's not what commerce was doing in these prior reviews and the well the type of turkey in the silos from finland they were giving parties the opportunity to comment on commerce as analysis and their results  you have to address like a post final which is kind of an oxymoron but the idea is commerce you know isn't obligated to keep on setting up a ping pong process where it can just go on forever when they're and then commerce in two thousand and twelve before the prelim in this case announced that it was going to be following the exact same procedures as it had an investigations in fact in their final modification they said they will be examining the same criteria  nowhere does it say that but your question regarding the combination of factors and the evidence of the three or four different items in combination certainly is sufficient notice to the petitioner that the allegation has to be made prior to the preliminary or if not done so at its peril the purpose of the case brief is not to raise allegations that have not been raised before the purpose of the case is to discuss the department's preliminary determination it's always been that way and so that's one of the reasons why commerce wants this allegation made before the preliminary in certain cases we've seen the allegation was made very close to the preliminary determination such that the commerce department was unable to make the determination at the preliminary and what it did because it flexible because if anti dumping administrative reviews require that kind of flexibility there's nothing to say that if petitioner had filed it target a dumping allegation one day after the preliminary or two days after the preliminary the converse would not accept that in fact if you look at the final determination  kind of says that and let me just quote from given the elapsed time between the issuance of respondents questionnaire responses and the issuance of the preliminary determination we find that the petitioner had ample opportunity to have filed its targeted dumping allegation prior to the date of the preliminary and certainly prior to its case so the petitioner waited going on three months after the preliminary to one minute morning your honor may be to follow up on that point the petitioner should have known this is an extremely complicated allegation that they're making it's not a simple math situation as they've portrayed in their brief  it's a complex allegation that merits a response of complex on facts from the respondents it's more similar to a critical circumstance allegation or sales of low cost allegations they're all required to be made before the  can only be made with a closed record and their allegation came way beyond the point where the record would have had to remain open for the respondents to have a chance a real chance to rebut they can't add new facts in rebuttal brief and so it's wildly inappropriate that they were a student first very much like somebody we were just talking about that that commerce maintains commerce could have reopened theoretically but that's an exceptional cases once in a while they'll do a post p and then let the case brief happen but the record has to be closed before the case briefs or file and there was they didn't make the allegation in time for congress to issue us questionnaires ask give us a chance to rebut the target dumping allegations it's not you press a button and s it's a very complex set of long facts as we pointed out on page ten of our sponsor brief it where congress and the read man redetermination explain this it's not simple push button and socks and say yes or no to this formula and we also address a judge  commerce do that and the answer from the statute and from from the case law is they have two choices they can either ask questions or they can accept the statement in terms of asking for the questions i just refer the work t even though commerce was telling everyone there was no deadline that strikes me as fundamentally unreliable where's the reasonable standard under which that would be a sufficient grounds to what we don't want your we don't have decision making acting in an arbitrary capricious so that department's decision to beam something as untimely when it comports with the time line we would suggest is otherwise  some references in regard to how complex these are from a data perspective and i think this is a minor point but i think it's of some importance that the government concedes now these allegations are done automatically they're automatically part of the government's program and it is essentially done at the push of the finger this is and the government across the board sewer spot and the government essentially concedes this on believe it's page eight nine of their brief footnote at the bottom so the idea that this would be somehow  too intensive to do is a bit of a canard in that now it's done automatically in every investigation and it's a standard part of tartans program that that being said i just want to come back to the  nowhere in their decisions does it say there are no deadlines as long as it's before the preliminary determination it's not kenyatta and it's not there's no qualification or limit he sion in those decisions on their face remain on the matter back so that the department can run its standard program to incorporate our basic argument that there is targeted dumping going on in the skit that there was a point made i think one of the lawyers stood up for such a brief period i barely remember about how this is a matter on which the record could reasonably be viewed as having to be reopened had you made this this allegation this is not just legal argument about close records but if you made some targeted something allegation in your then likely you would they they would have been entitled to say oh there's actually more more facts that we didn't need to put in didn't put in facts included in our allegation morewood any new facts be needed to be added to the record to evaluate this our basic argument is a legal argument in regard to the methodology that should be our argument evaluated and if it's found to be meritorious to apply that methodology