did not matter that they reversed themselves on the country of origin test and sold to what they used in solar one because they say each of those determinations is proceeding specific well but it simply says that a class of kind of merchandise based on the ad that each investigation if you agree with that yes you are and we do agree as we stayed in our grace we believe the statute is silent on this issue of whether or not the classic kind affirmation is proceeding specific but we then go on your honor in our brace and it's our position that that doesn't really matter the issue is not whether the statute addresses or doesn't address that specific issue the issue is that the agency has an independent obligation it's a basic axiom of administrative law that it has to adequately explain with the reason explanation why it treated similarly situated situations differently so they have the right in the first case you're not complaining about the first never transformation and so this is the first case and they've decided that china is the country of origin here under these circumstances and so are two it would be your point of clarifying the question your honor but we would have a problem our position is rests on two legs your honor and in response to judge your knowledge question is well number one there we have or salt in this present peel sold to from when their position in solar one is arbitrary and they haven't explained with the reason explanation why they've reversed themselves and sold it to that's the first like you're on the second leg is that independent of the arbitrariness of what they did revers themselves separately and then handed late they didn't last on their decision on tristan szell record evidence in making their determination here in seoul two so following up on your example iran and even if there was no solar one it's still our position at this solar two country avoids any terminations is not supported by substantial record evidence and as an invalid determination we think our position is only strengthened by the fact that we have this very unusual circumstance here where we have the agency one hundred percent contradicting itself on its country of origin test from solar one to what it's doing in solar two and so your honor to be clear where we're resting on those too late right but sudden it but they didn't base it on sufficient marker that that is correct the we are not challenging that the agency has the authority under the statute to define country of origin in the country of origin it's essential that apartment has to do two things in a  case number one have to define the product they're looking at here at solar cells and models of things you see on the roofs of houses and buildings secondly they have to define where is the product from what country did it originate from many products in today's global supply chain world are produced in different different elements are produced in different countries so it's always an essential issue before the agency where for our purposes for these trade cases where is this product from and that's the country of origin test so there's two legs number one is what is the product and number two what's the country of origin for the product right and they have both the obligation and the authority to do both of those things as long as they base it on substantial evidence and they don't act ever why was the record evidence no number one that the petitioner we fear was alleging that the harm at issue was alleged chinese subsidies to the assembly operation in china and number two that  there was also a desire to effectuate petitioners intent that the petition wanted to pick up harms caused by subsidies to assembly in china ok putting to one side response your question the fact that they have never before used this test there is a thirty to forty year history of the camps department appointed for central transformation task to determine country of origin there is not a single other case besides this trounced appeal in which they have ever not used the substantial transformation test so all of a sudden in this case they invent a new test fact your honor there are we certainly recognize that the agency has discretion to determine country of origin and we also have knowledge in our greece of the statute is silent on how the agency has to determine country of origin that's up to the agency that is correct your honor if the evidence supports that determination we are not saying the agency as a matter of law could not use a new task but we are saying here that the record doesn't support it i mean our you know your answer to  the remaining determination that the agency issues you have to focus on foot no one thirty one in the remaining determination and the government and its brief here cites three separate time to footnote one thirty one and it is the it is the only record evidence supporting the agency's decision there's two problems with footnote one thirty one it cites only to two things the petitioners allegations in the petition and secondly the agency's own independent factual investigation or fact gathering or verification of any of those allegations they are mere allegations in the petition and it's our position that mere allegations in a petition by themselves which is all the agency has agency explained why reversed itself on the sole of one determination to focus more on that aspect i don't believe your honor that she independently address the substantial evidence issue that we've raised in our br good morning honors me a please the court record that congress relied upon to depart from its normal practice there were declarations or or statements on the record from chinese solar manufacturers saying that they had done they had they had changed their as in the absence of contrary record evidence and in the with again the fact that the respondents here as judge hogan noted on pages twenty five and twenty six of his opinion they they greet they've never challenge the fact that th respondents did in fact change their supply chains in order to avoid paying the duties that were imposed as a result of solar wind so that's the factual record that that that those are the facts that are on the record the commerce used  examination of the underlying evidence to support those observations i think it's not quite right to say that if they were relying solely on allegations they were relying upon the factual declarations and news reports that were supplied with the petition and there's no contrary record evidence that the that the respondent supplied to suggest that this wasn't actually the case everybody agrees that this is this is actually what was happening so given that i trial court in their briefing they never they never challenged that that finding they they conceded that this is actually what the chinese manufacturers were were doing so i don't understand why actual argument they were making you know in order to understand i think in order to for us to show the court why the argument is wrong we do need to go back to the language of the statute and the language of the statute ties class or kind of on comes in to the point where congress has not spoken directly as to how commerce is to define class or kind of merchandise or to have to do a country of origin analysis when it's  the unique nature of the solar products industry in terms of this very adaptable supply chain the concern that in fact petitioners had proposed a slightly different scope language in solar two that would have looked at the country of origin for th first that that that become the cells in congress and that that would not be administered because the respondents don't keep track of their supply chain in that way and three congress needed a mechanism to address the harm alleged by the petitioner and that panels that are that are manufactured in china or assembled in china why couldn't importer of them why upon commerce with determination in specific reference to that crack in making their ultimate decision they certainly can your honor this day and i think that they they would argue that that was good business sense on their part to to doubt their supply chain so that they didn't have to pay the duties that doesn't preclude commerce from that doesn't constrain co authority to investigate allegations of unfair trade practices and as here congress found and the i c c found in their respective investigations that that there was positive dumping there was is and there was harm to the domestic industry that was specific to panels and so where that's the case of commerce has the authority under the statute to impose duties to to address th unfair trade practices so it's not that there was anything wrong or illegal with what they did but that doesn't constrain commerce in any way from addressing harms that are that are subsequently alleged in weak and she longstanding policy on the basis of a proceeding other than here the congress has never said proceeding specific i think that language actually comes from that court of international trade will commerce is relied upon as the language  it be the transfer of recent times for not ever gone from one circumstance where you're looking at any type of merchandise and then in another proceeding say we're going to apply a different so we're looking at whether the way for that or the semiconductor where we can for country of origin commerce and in the absence of other evidence to suggest that there's a reason to depart from our normal test we're not going to depart from our normal test here commerce found that there were facts on the record undisputed facts on the record to suggest that applying its substantial transformation tests and using the cell as a country of origin would not be sufficient to address the harms and the injuries that were specifically alleged with respect to the panels and the fact that the fact remains we have three we haven't talked by to how on but there are three sets of orders each of them cover different merchandise there is no overlap there's no one piece of in shanghai and assembled in time would you say oh well those are different products because they were the solar cells came from a different part of china and so therefore we can use a completely identical but they're literally different products so therefore we can do something different and so therefore the not similar situation i don't know if that's enough but here you might have more which is this particular product the  came from country one and there were some building country two whereas this one although it looks the same it's the opposite the solar cell was made in country to do with an assembled in country one and then thirdly i guess you could do start with the scope language a look at the physical description of the merchandise and those physical descriptions are all different solar one talks about solar cells that are that may or may not be assembled and to into panels  specifically we're looking at those panels and modules that are simple husing cells that come from a different customs territory other than china so they should naked eye they they may look exactly the panel my look exactly the same but the way that they're put together and unfair trade practices that were they're alleged are specific to the way it's the way it's put together that helpful  court three points first propellent challenge whether there was record evidence to support a different country of origin finding here there clearly was and i know that because we put a lot of it on the record as petitioners but it's factual information it's not allegations that includes import data showing the surge of imports from china of chinese modules containing nine chinese sounds it's also factual statements of five companies including the o of canadian solar who said that in an a reuters article from july twenty twelve while the first case was still going on all u s found solar modules would be made with slightly more expensive taiwanese cells to avoid the tear to avoid the tear as appendix page forty two so our petition provided sufficient factual evidence that there was a shift in trading patterns that occurred as a result of solar one that  origin well that's where the dumping was coming from that's where the subsidies were benefiting production and that's where the injury was coming from as well second point i would say there are important legal and policy reasons why thomas's substantial transformation hightest should not be required to govern all cases for for covering country of origin as judge chen pointed out there was a unique fact pattern here that's what turner said and that's what the court of international trade underneath  well there was a unique fact pattern of a wholesale switching supply that justified using a different country of origin tasks in their skates and in the court found that the differing rules of origin are tailored to cover clearly enough explanation here you can see that on page twenty three of our brief commerce more than adequately explained the disparate treatment of similar situations here the products are differently situated that answer your most recent question again different products being dumped a chinese module made with taiwanese cells is different in terms of dumping a fact it's different in terms of subsidies being provided to china as opposed to some other country and different in terms of the what there was lying on the sideline china in this instance well i think they relied on first of all that module manufacturing was important but then i think they really went to the fundamental purpose of the trade laws and how it would be frustrated by an approach that locked down or stand to substantial transformation you have to you have to be able to move away from that if the injury is being caused in those other steps even if there is not what commerce or customs would deem a substantial transformation so i think that's so you're only allowed to rely to that extent we had to go to the extent of filing a second trade petition to to address this additional harm all the parties were clearly on notice that that that we were trying to address the unfair trade no matter what form it occurred is the question here is whether we have a new circumstance that requires that if if there were one hundred other examples of have to pay to do these and so and this is becoming from a policy perspective it's becoming more common that the supply chains are global so i think commerce has to have some flexibility it can't be tied to to the same approach it's yours and i think congress did articulate the reason why deviated and the logical way that it found that these products are are properly subject to trade remedies so it's ok to have no interest it's important to have a task that you use in most situations which was used for taiwan in this case but to deviate from it with a reason explanation and what the court and commerce acknowledged was a unique fact pattern it was unique and it undermined  relief that my clients were entitled to thank you very much you know the petition contains allegations on shifts in trade flows but it's just that it's allegations congress at no point in if and only confirming the last of the of those allegations and let's just set aside for a moment let's accept that those are true promise never demonstrates how allegations or proof of shift in trade flows demonstrate that module assembly confers origin never happens in the record ever so your c e o i'm not following the rule that says don't ever talk to the press that that wasn't  meaningful no that's relevant for purposes of circumvention and commerce has other tools that it can use to address circumvention with respect to products purportedly circumventing the seller one order absolutely but not for purposes of time sorry you're on a not for purposes of demonstrating country of order that's true and i also think though your honor it's important to keep in mind that the solar one orders can in fact account for these subsidies as you know solar one concerns solar cells produced in china that are later assembled into whether that manufacturer benefit now to be fair that's narry would not cover a situation in which solar cells produced in a third country are imported into china and then assembled into modules and panels what comments himself has acknowledged in past cases like the rams from good race but it's essential evidence of supported the country of origin finding developed during investigations or through any characteristics of the product which is presumably being analyzed for detergent determination of its country of origin if you flip over to page one seventy the last sentence of the first full paragraph there other than referring to the petition declaration state it's not relevant to whether a product originates from country a or country b because because it's irrelevant the ships in trade for don't don't show the module simply involves so much you know this is a requisite component of commerce as analysis so here we're presuming that congress is going to follow what it's done before and identify where the particular product comes from and in other cases like the belgian steel plate congress has recognized that it can only investigate products that come from the subject country the subject country being the one named in the petition here china but i thought in the opening argument we'd already read that this was the very first  substantial transformation test or different tests along that explains its reasons for using a new test and of course to do that as you know it has to basically that new test on policy and adequate explanation which involves some factual support for the new policy so is it your position that that task was not properly defined or that there was no evidence to support what they defined to be the task we argue both in our opening brief we talk about how congress said it conducted some sort of additional now also spin never lays out what that additional