morning on our samantha please the court this court should reverse the order in national trades refusal to court the proper amount of deference to the department of commerce is determination of the proper constructed value profit for tyee may calculate it under a statutory alternative that provided that commerce could use any other reasonable method for determining the construct of the rockets and in this instance  this case is essentially about deference owed to the apartment of commerce as this court has stated and on many occasions commerce is the master of the n t dumping was the supreme court has recently in the euro de cision made it very plain that the issue in deciding cases such as this is not whether the trial court reasoning or alternative method for determining a particular value was better than what commerce did but rather whether what commerce it was reasonable and in this case unlike a lot of other cases that come before this court involving the department of commerce is even is a case where even  more attention should be given to deference unlike most chevron step two cases in which there is a statutory provision which is not completely filled in by congress and the department of commerce is essentially filling a gap by making a determination a work congress hasn't spoken in this instance we're dealing with this particular statute alternative three section sixteen seventy seven b two b which provides a very broad one of the broadest expressions of discretionary authority that has been given to armor commerce to determine constructive value in this instance using any other reasonable method and that provides quite a bit of discretion we're not suggesting of course that there are some super chevron standard to be applied in a case like this but but sixteen seventy seven and didn't didn't need quite a bit of national trade whole the any other reasonable method could not include the ordinary course of trade limitation because it was in two way and not be through well basically the point he he actually didn't specifically say that the statute alternative three excluded the possibility for ever of commerce including war excluding low cost sales because it's it's recognized in the in the statute that there is  no limitation in alternative three to to use a low cost or ordinary out of the ordinary course of trade sales but what the trout were decided and  correctly was that commerce had somehow interpretating alternatives three included in it a general preference a statutory preference for the exclusion of all cost instance was to recognise that an alternative free there is broad discretion to use a low cost sales in some instances to exclude below cost sales in some instances congress had pretty much left it wide open and that it was reasonable not as a matter of reading into alternative three of statutory preference but it was reasonable to mimic the statutory preference that is these methods to eliminate certain low cost sales that have exceeded or below a certain cost over a certain period of time and to exclude in many in the original issues and decisions memorandum that commerce published along with the regional investigation results or in the remained of terminations that the court criticised in its  decision it seemed to be the court's concern that instead of this calculation being driven by the facts or specific circumstances in this case the determination was driven by a statutory interpretation of some parallelism between a and b with respect to ordinary course of trade and that that would amount to a flat out rule that would be applied in every case it was a misreading and you're correct in characterizing exactly what judge stance you felt was the problem with  fact in some cases in which constructed value profit is calculated under alternative three below cost sales are included they're included primarily in those circumstances in which the calculation is based on financial statements and other broad data that doesn't involve the subject goods and under under investigation and therefore the transaction specific information would be  required and the cost information would be required to determine whether the sales were below cost isn't available so there are many instances in fact is would seem that in most instances in which alternative three is utilized by commerce it isn't backpack what made this fact pattern unique or unusual least was the fact that here because the constructed value profit for time a was was being  completed based on the data from the other respondents in the investigation dealing with the subject merchandise there could be a exclusion of  sales which might normally not be possible and then i guess in this case you have data available with respect to the other respondents so that a calculation was made under section  a proper analysis would in this case just as in the other two to kill ations not include the below cost melts while the reasoning was partially based on the fail ability of the data which i've just explained is not common in many of these cases which by the time you get to alternative three and recognizing that this is also facts available instance where alternative three was calculated without reference to the profit cap because there wasn't sufficient data regarding home sales in thailand of either the subject merchandise or even goods in the same class or category as the subject merchandise to allow for the calculation of the profit cat so congress was for was essentially using alternative free and of facts available circumstance as is permitted under section sixteen seventy seven easy and in that circumstance where this data was available and where it was there was a consistency that they were trying to foster across different responde sing canadian sales excluding the out of the were very coarse of trade sales that were below cost and so since we're using that very same data for the purposes of calculating time a c d profit it would seem to be unfair or have some inconsistency with using that data differently for tie in may than it was used for the other respondents in the same investigation and this is not unprecedented as was pointed out and remain determination in cases such as the it ministry determination of involving  here by having read into alternative three a statutory presumption or or some sort of a preference that would be applied across the board or in many other cases other than one case with very specific and unique fact pattern like this one is not supported by the language of commerce is determination so what we're stuck with here is an instance where like i said this is very broad deference to use any other reasonable method in a circumstance which is also a facts available circumstance where commerce also is a fairly broad discretion in determining values where information based on the availability of information in a circumstance where there is no market in thailand for this warm water sram no viable market at least for the purposes of calculating normal value no market which is viable for calculating tiny maize profit under alternative one which would essentially using their own data for sales of merchandise in the same class or category of merchandise there wasn't any data for that and so are under alternative three  in this circumstance this was an eminently reasonable way for commerce to have determined this and as as as i've pointed out you know commerce is determination here is what should govern in the absence of may please the court directly to some of the issues that mr whyte has as discussed i heard mr wayne say that the question of whether sales outside the ordinary course of trade could be included or excluded under alternative theory is left wide open by could be included in some cases excluding others wide open that seems to me to be directly at odds with the position that congress has taken throughout this case in the drought that the proceedings below at the c i t congress has taken the position that there was a congressional preference inserted into the statute the exclusion of sales outside the ordinary course of trade the very existence of some paragraph a right to use that term to refer to section seven seven three eight t congress position seems to be both that there is a congressional preference and in this case that was reasonable to interpret the statute to mimic subparagraph a particularly sales at a time when your course of trade restrictions are paragraphing but even if that this case and isn't that entitle uing all of their character elation in the entirety to deference as being reasonable converses interpretation is chevron deference but congress interpretation this case is not reasonable and it's decision based on the three facts that cited our remit is not based by not based on the substantial evidence come or cited in fact only three facts the first time on are really conditions precedent for the selection of any respondents in any dumping investigation that are not related to time a none of the facts are rationally connected in any way to time a's experience and to the calculation of profit rate for t e so putting aside of the preference argument even looking at the factual situation there is no evidence on the record that based on two other respondents third country cells congress could reasonably draw a conclusion that time they would have sold below cost and it's reasonable to exclude the sales outside the owner of course of trade from time a's see the profit calculation which more than the statute that requires a reasonable method it requires more than congress and because of that in drafting the you are a congress ought to to make sure that that discretion was not abused in the usa congress is required under alternative three to give a description of the c profit methodology chosen and an explanation for why it was chosen so not only is it important how congress got there but why the why must be reasonable in this case it's not a reasonable explanation that commerce chose to get to alternative one applies to sales in the same general category of products turning to be sorry alternative to applies to other respondents profit experience while subpar if a is very explicit what applies to the respondent under investigation and to that respondents actual amounts incurred before like product that cannot be carried over into this case and as a ca he said it's not possible to glean from the language of support a graph a congressional intent to exclude sales outside the ordinary course of trade in the other three alternatives alternative three in particular in this case converses position based on in any number of ways either in the statute or the legislative history it over of ways without strictly inserting across the board restriction an alternative but there is none there is not a hint of a preference in fact the legislative history in the essay state methodology under alternative three will be determined on a case by case basis and the decision of that is exclude cells outside the intercourse of trade with the added weight on a case by case basis and united states no to me i say that it is not making any benchmarks or  or methods the application will turn the three shortly after the problem after the assets of the you are a congress promulgated its implementing regulations and the preamble to those regulations congress again no it's understanding that the decision whether to exclude sales outside the or narry course a trade must be made on a case by case basis and if that commerce is language is that there may be instances where it is necessary to exclude sales outside they are very coarse in order to obtain a re so congress is understanding shortly after the passage of the ira is that if anything congress is normal business would be to include all such sales under alternative three unless it can be shown that it were necessary to do so this is not a case in which it is necessary to do so there is still a fair profit rate that congress cut they don't it secondly manned by including all of the third world countries sales of the two other respondents including sales outside the universe of trade moreover it's important that congress has never before this case articulated it will rely upon the preference that it asserts before this court it is never since the passage of the your a issued a decision or in this case cited a decision that puts forth this preference for exclusion of cells outside their intercourse a trade fact congress has relied has taken methodologies in other cases that run contrary to this position so the fact that congress before this cases has never seen it in all of the alternative three cases to mention this preference which rely undermines the argument that this is a congressional preference that must been placed in the statute at the time that congress drafted it there's nothing in the statute would preclude commerce from determining on a case by case basis to exclude below cost sales career that's correct it must be made on a case by case basis maced based on the facts and circumstances of particular case in this case there are no facts or circumstances to support exclusion of sales in the ordinary course of tra congress did so for some reasons why they did what they did and why they excluded the low cost sales that talked about the similar sales and the same method of determining c v profit there were reasons when they were not reasons based on facts in this case there are specific to tighten may nothing none of the reasons given by congress were related to time they are based on the facts that show that the methodology was reasonable  three respondents were producers and exporters of frozen trip from thailand that's why they're all respondents in this case but the fact that they're all respondents does not mean that one company's experience with mimic another company's experience especially since time in tonight even cell in or traditionally cases where there is an absence of a lot of facts and that's why you find yourself in that category so they did draw some parallels and there was sort of overlapping periods of sales similar activities similar products of things of this or so and why it why is it appropriate to reach the conclusion with this sort of deferential standard in place that what they did was unreasonable given the fact it doesn't preclude them from excluding bloke aussie rules all of the facts stated at best would support the use of the other two respondents third country sales as a general dataset but none of this back support the exclusion of sales outside during a course of trade commerce because of the availability of data is a factor that's simply not a factor here because the data are available to either include or exclude sales outside the ordinary course of trade there is no question of whether the data are available in either direction that's not a factor that indicates that it is reasonable the availability data alone doesn't make a methodology reasonable it's not substantial evidence to support congress must make some decision based on substantial evidence that this is reflective of time a that this is in some way related to time it under the standard of review and i disagree that it's and in fact i was i agree with mr white that it's not a super chevron standard this is the regular hold chevron standard and substantial evidence  standard there is no evidence on the record that it is reasonable in this case given the choice to include or exclude sales based on a case by case determination that the fact that the other two respondents maybe sales outside  e ordinary course of trade is in any way reflective of time a or in any way indicates a tie in may may have made the sales there's no comparison of the companies selling practices or cost truck shuras indicate that time may even if it had a viable market in canada or in thailand would have made sales below cost or even if it sold at the same price as the other two respondents that that would have been a low cost there were sell outs by the intercourse trade nothing in the department's determination or first three man  supports a conclusion that it is reasonable to take the other two companies profit experienced in a market in which time they do not even participate and exclude those sales it's very responded specific to exclude sales outside  ordinary course of trade because it's based on a specific responded it's selling practices the cost structure and there's no evidence in the record to tie those to timing in fact the ordinary course of trade restriction it applies in the statute to places and sub paragraph a an alternative to but it generally applies where there are actual data on the record either for the responded under investigation in the case of subpar or if they were for the particular market the home market in this case thailand in the case of alternatives to something to tie it into the responded to the home market to something that we could say this is substantial evidence something reasonable that this is maybe what time it would have done had it had a viable home market but there's no evidence of that in this case and congress as your honor mentions congress to bring up the consistency rationale that it's a reason to treat time a like the other two respondents i think that argument is a red herring these are three different respondents in very different situations i mean did not have a viable comparison market the other two did have viable comparison markets in c v profit their sales outside entire normal value whereas the other respondents are using constructed value only for the comparison of a few transactions in some of these are different respondents as congress has an obligation of the statute to calculate dumping margin accurately as possible for each selected respondent and there's no reason to treat these three respondents the same just for the sake of sameness if there were five respondents under investigation and two sold below cost in canada there's no reason to believe based on that fact alone that the other three would be selling below cost and that would be reasonable to exclude theirselves and see the profit calculation first point i want to make is i think there is a sense that it doesn't really matter if below cost sales are excluded or included because the particulars of its decision there is very strong reasons to believe looking at the language of the statute the language of the s a a that congress had a reason for to for structuring this the way it was structured and the reason was is that in some instances below cost sales could be considered and excluded where procreate and in other cases commerce would be relying on raw data sets that wouldn't allow for backing out transactions or below cost that's part of the reason that alternative one reads the way it reads it's because when you're dealing with a product or group of products that aren't the product it's the subject of the investigation for which commerce has reams of data having from from the interested parties there will be no easy way and so as a matter of administrative  of other you know financial information in the instances where the subject merchandise is under consideration those below cost sales should normally be eliminated if it's appropriate based on the availability of the data because that's in keeping with the the structure and the purpose of the normal value statue as a whole and is it appropriate to to  facts specific to time a bit that support that argument could be made in a number of different context which are directly stated in the in the statute for example these alternatives are not  are not provided in any hierarchical sense commerce free if it was a if if it was possible to use any of them could have used any of them in an alternative to for example the construct of constructed value profit is determined based on the weighted average of the other respondents in the home market in that instance you're not looking at the the facts that are specific to the respondent such as ti either so within the structure of the statute itself is the idea that this profit calculation might be calculated on the basis of other parties experience that's not uncommon at all particularly in facts available circumstances so across the board when commerce makes determinations using facts available in determining values for the purposes of normal  it would be it wouldn't be unusual for the individual circumstances of a particular respondent to not be reflected in the data that is used to determine the value for that party and so alternative one is one of them or excuse me alternative to as one of them and to further answer your question there are commerce made it very plain in their remain to terminate this case that there was a reason to believe that these were other respondents or in the same investigations on the same product a lot of that product is going to the united states in the instance of the other two  frozen they had an all you know viable third party mark third country market in canada when commerce determined that looking at the were very coarse of trade sales of those other respondents in canada that that it was a profit could be determined based on the ordinary course of trade sales record recognizing that this this shrimp be sold for and profitable prices in certain countries market it was reasonable to apply that to another responded in the same investigation where they were using the exact same data at th was used in the sense only that the profit cap is not being used in this case but it's important to look at the evidence in the record the other three respondents it's true they were also respondents but it's not possible to infer from the fact in any way of time he sells them for it's not based on substantial evidence there's no factual basis to to make a reasonable conclusion as to tie him a cd profit thank you