finance from a company in india called national mine development corporation and then d c obtained a benefit from those purchases given the fact that this court is well aware of many of the facts i won't belabor them too much but one of what i'd like to do is take a few minutes to focus on our central point that we made in this case and that was that in determining whether or not there was a benefit for  purposes the department of commerce ignores the statute which tells them that in determining whether or not goods first sold at less than adequate remuneration it should consider the prevailing market conditions for the goods in question and those prevailing market conditions include the quality of alle ability markets marketability transportation other purchases affecting price we believe the department of commerce ignored the statute in this case your honour's and what we did a little bit different than this review than we did the previous one was try to find a way that we could highlight that for the department of commerce and later the court of international tra e we did was we took world market prices from animal world market prices from the various suppliers at the time from brazil from australia and from published sources as well as in m d c and we put those prices on the same basis in other words we use the same currency we put them all into rupees we then looked at it in terms of the same weight bases the same iron content and the same delivery times next mine basis which is the way that s our purchases it's money it's our now we're in finds from an m d c an x mine basis and lo and behold all the prices were effectively the same as ours paying a world market price for a good that it purchases on you know that from the mines had similar to if you had a problem with government control who sell oh yes well you know it's a government it is a government of the state enterprise  honor but if they were purchasing our in one finds from brazil or a brazilian supplier was our manufacturers purchasing them on the same basis they would get the same price that's what we're he understand the statute says that you have to determine whether there's a benefit to the recipient and the benefit is considered is are you getting an unfair advantage do the government intervention as sorry didn't receive any unfair advantage to the government intervention that it received any advantage it was because they were in a position to purchase are no more than five within the country at the mine have so that's the advantage they had this was this would be similar your honor to petrol chemical company and saudi arabia said could buy oil in the world market price under the department of commerce this theory in order to determine whether they were getting a benefit you would have to add  freight from venezuela to that lo and behold there's there's your margin i think one way to look at this is to compare the differences between how the department of commerce looks at transportation in the antidumping goods sold the united states they would never compare on x mark x factory price in the home market to a delivered price in the united states because you would effectively almost never have dumping they would say well that's not a fair comparison but on the flip side when they're trying to compare prices in the c b d contest they compare an x mine or x factory price to a delivered price in india even though the s are never are delivered basis and they're affectively in this case creating a margin where none exists now i understand the previous decision was not three men this issue back to the court going to actually trade but i also understand that this court will consider this issue and do you know what basis and i hope the court will see it looking at this information will decide that it warrants further remand back to the court the national trend the next issue that i wanted to discuss received that allowed them to obtain any benefits if there were any under the f c c program was granted on june january thirtieth two thousand and seven have never in this case but if the goods were sold export from india and delivered to the united states prior to that day so it's very clear that the goods that hundreds in question under this review could never have benefited from those subsidies if there were any therefore given the part of congress rules for time subsidies they should never have found a subsidy in this case they found a subsidy because one of the support was granted during the period review this is one of the unique situations where you have a fixed date within the review where if a subsidy was granted you know it had to be after that date and you know all the goods that were exploited to the united states sold in the united states were sold prior to that date so there's no way that these particular goods could have benefited in any way from subsidies under this program so we respectfully request that this poor man that issue back to the department of commerce says well i would like to retain my remaining time for a thank you your honor may please the court in this case the court of international trade found that congress has final results were supported by substantial evidence they found that the evidence on the record showed the death star failed to cooperate however instead of complying with the standard of review in upholding congress's determination the court of international trade erroneous lee ordered the case three man did back to the department of commerce without any finding of error on the part of the department of commerce in the re and the court ordered the congress apartment add some extra record documents to the administrative record on remand and we now know based upon these additional documents that the sequence of events that occurred was that in march two thousand and seven r applied for a subsidy under the state government of chad a scar industrial policy program and the document is in the record of page six nine zero two in may of two thousand and five to our started in may of two thousand and eight  of fourteen months later esther responded to the cut off the commerce department first questionnaire on subsidies and stated that they had no manufacturing facility in the state of chad a scar and that document is in the record of page six subsidy that denied the existence of any facility in the chair to scar state it had pending its application for the subsidy benefit and they had a subsidy one of their applications for subsidy benefits was denied on september twelfth so temper twelve two thousand immigrants the records changed we would argue that the record was improperly changed however even if the these documents were  that the regulation allows for commerce to consider untimely submissions and make its own discretionary determination of whether to allow them in that authority has usurped in this case yes your honor the point is that the record as a third of the time you didn't consider this it is being considered in a subsequent year or different year administration for appeal and it seems to go exactly the opposite way and resulting in the duties why don't you the best of its ability you have ordered the riminton ordered the commerce department to place these documents upon the record and consider the documents in this in its remit and terminations so why didn't you place the documents on the record consider them and say to argue in the brief they just for their substantiate the lack of cooperation and good faith behavior by esther and that we continue to maintain our adverse sack application what we have made those arguments to the court of eight i believe or so there about we made those arguments and the court was still ordered to remain and so we made those arguments but not only that the court ordered didn't just say take a look at these documents that the court said that it was error though that was inconsistent and ordered that the documents be placed on the record and considered i know you're all living across the field now don't you want to spend the rest of the decision below you determine prices for actual transactions and this and the regulation and the regulation is at nineteen c f r three fifty one five eleven a safe with only consider government prices if they're the result of a government run option and these are clearly option prices there's been no demonstration that they were auction prices edition really f r argues that it was error to include the transportation charges for transportation charges are required to be included pursuant to the statute  the actual goods produced however commerce is tying regulations and if that nineteen c f r three fifty one five twenty five b five allows tying only when the terms of the subsidy restrict the subsidy to specific goods in other words if it's only for export if there were hypothetically an export subsidy export for goods that were shipped to a certain country congress would tie it to the goods that were shipped to the certain country but here there is no restriction on the exports it to to begin by emphasizing a few points on our affirmative issue and of course happy to take questions on the other two issues on iraq or the f c c act the failure to act to the best of one's ability is as this court has held in the ponds deal in a number of other cases the statutory trigger for the application of adverse facts available and as our by refusing to cooperate with congress in the underlying proceeding here met all the requirements for the available here the evidence that was later produced by ass are only confirmed that it had in its possession at the time congress was asking for information on the iron ore beneficiation facility and shot a scar relevant documents that it austria policy program and it was pending an application or ruling on those and that application now i'm aware of no case that holds that the department of commerce is required to consider evidence that has been withheld by responding or another interested party when evaluating converses decision to apply adverse facts available and indeed this court's decision  which has very very analogous fact pattern illustrates that that is not a requirement the statute and that is not proper for congress to be earmarked for and i have no description no to consider if they have the discretion to apply ambers facts available or not but if you look at the statutes don't statutory scheme and in particular section six hundred seventy seven and the which deals with the consideration of evidence commerce show not declined to consider evidence that has been finally produced by the respondent and for which the respondent had at has acted to the best of its ability to produce but the converse of that is that the congress may decline to consider evidence that does not meet those requirements and  that's clearly the case here with respect to the information that f r later produced in the subsequent proceedings one point i guess i would divert slightly from the counsel for the government on is the question of whether it's commerce ultimately applied here whether it's appropriate to consider that later produced evidence and we would we would strongly argue that that is not appropriate here there is nothing in the statute that requires that and indeed the policy implications of that would be  huge here the ability of a respondent or other interested parties to withhold evidence and not meet the deadline set by congress under its administrate of reviews which are as you well know governed by strict statutory deadlines would enable the response to selectively produce information control of the proceedings and far from ensuring accuracy as was the concern of the court international trade and the underlying decision here would in fact not go on accuracy because it would lead to the ability inability of other interested parties in commerce to test verify conduct regular proceedings in accordance with commerce is a statutory mandate and for that reason we think that the decision of the court of international trade below should be overturned thank you thank you that were asked in two thousand and seven s are answered them basically the same way in both cases two thousand and six the department of commerce found that the program was not used it wasn't until the briefing stage where petitioners raised the issue and put on some raised the issue again that congress would then went out and ask additional questions that were more specific when with when the we have the more specific questions from  as our had never denied or therefore there were references to this benefit station facility just which just so you know it's not a manufacturing facility it's a pumping station because that's all we're talking about going back to our origin fin applied the facts available determination we appealed yes or appeal decision to case the two thousand and six review and it was in that review that the department of or the government requested the court of international trade to allow it to go outside the record of that case to collect additional information upon that date as they got the information that s r t could not have gotten benefits from this program now there before this court arguing excuse me we have to look at the record as it stands and the two thousand and seven review and they're objecting to accepting information that they don't like just would prove that there was no subsidy during this in home products in allowing them to recognizing that it can go outside the record in if there were certain situations and those situations i believe include situations such as this where you have a situation where the new evidence will drastically change the administrative determination so i believe the board of national trade did not abuse of discretion in determining and ordering the department of commerce to accept to move information if there was this could have been rizzo nationalize sure there is you want to thank you don't get subsidies under the program the easiest way to avoid that increase say you know you have a civility there but then there's no question you don't get subsidies under the program understood your honor there actually is a rationale to  head we've been clear headed we've been over there is the question before your application for subsidies was denying by the government so you say now in hindsight the fact that the new government has determined not to give us subsidies means there was no rationale to were answering the questions to the best of their ability but that doesn't deny the fact that the department of commerce wants to use before to prevent this ford from considering information that it itself says proves there was no subsidy and it was information that they themselves requested in the previous appeal they were saying tonight piers i i understand that that's the point i was trying to make your honor is that the truth does show that i believe that it was an inadvertent error on their part they were answering the questions from one review to the next not going to say that and it's a big company in a big country so there was a mistake made we know now what the real facts are on the department of commerce felt that it was imperative in the two thousand and six review to open that record i think the reason they did was they wanted to charge a see if they could apply facts available in that case and the facts didn't work out that way so now they want to apply a fifty four percent r just on this issue for ask are even though there are they know that at that rate is not correct and cannot be corroborated you know turning back to the issue of arnold finding the purchase price one thing that you never heard from from the government side is any discussion of the statute how how does our decision comport with the statutory language because if they try to they can't do it and they've they've never tried to do it they've looked only in the regulations and they've never said this is how consistent with the statue on the s are the f c c program they said that there can be tied to products you know well this is a product that the f c c program cannot you could not have gotten benefit from it unless it was after january thirtieth two thousand and seven therefore it's tied to those products this was produced in export and sold prior to that day  therefore it's if it's tied to other products so there's no subsidy should be conferred on the on of the products that were shipped during this review period thank you very much  appropriately as we set out in our brief the united states steel raised an issue regarding the benefit cation plant in the fourth administrative review the congress department in its final results inadvertently failed to address that issue and we saw to remain and because the commerce department had not addressed the issue in this final results and under those circumstances that remained was appropriate it had nothing to do with the commerce department seeking to enforce a punitive rate or anything of that type on as our i also want to point out the in response to judge moore's question i was stumbling over a page cited in my opening comments and it was a page two seven one seven on which the government's response to the court's or where we raised all of the basically all of the arguments that we've made in our brief as to why the court should not reopen the record in the court rejected those in its published opinion too big here i'm thinking i