commerce department first asserted the methodology it took in a final determination at the final determination and therefore that was our first opportunity to object to it was on the appeal the lower court agreed with our stance on exhaustion and this court applies a highly at the final determination hearing will the final determination is the last decision of the case ok so i think you're going to go to the first time he saw there was their methodology was in writing in their final determination and it contradicted their  determination the verification report and everything else in in the final determination so this segues into what we feel is the threshold legal issue in the case from our standpoint and that is that the constant current did not apply the correct that the valuation of factors of production shall be based on the best available information regarding the values of such factors it's right in the law now the commerce department cited that law twenty three times with respect to other issues in its final issues and decision memorandum it applied that law in the correct standard with respect to every single wrong in the case including other very important pet raw materials that were used by other respondents then all the sudden when it came to an end with office but both lakes it cited a completely different materials we use shall be based on the best available information regarding the values of such factors is very clear under chevron one the no one that doesn't have discretion the agency doesn't have discretion to apply a different law to our value of the value of our factories or production and in fact in the majority of cases chinese response don't have market purchases so the missing the information is over he's missing and they always apply this statute and default india for the value but doesn't  value factors of production you must resort to six hundred seventy seven be the cases cited by the other parties or on that for generic facts available are not not market economy cases the way it normally works in responded it is regulation that permits the commerce department to rely on actual market purchases because they deem them to be more specific than some generic number in india as a regulation in turkey six hundred seventy seven b so the regulation cannot information is always missing best available information implies that the perfect information might not be there and so i think what the congress intended here since normally to your departing from the chinese company's books in the first place normally going to india to twenty five years and on market economy practice before the part anyway so our position is it's you know the judge at the lower court implied that you know the name of the correct standard but then that's not what the agency applied so our submission would be that big is not the provenance of the court or the department of justice to rewrite the justify a lower mistreated decision based on a new standard that they did not cite were evaluated below we do believe this is a higher standard and we believe that for this reason alone the case should be reminded to the  those usage recipes which were written on a blackboard in a race six months before the petition was filed could not be used to reconstruct color specific usage of the pet flakes to convert them into polyester staple fiber the the colors on the invoice which is in dispute invoice they didn't even process orders by a particular group of large sacks of dirty flakes that came in with a particular boys because they didn't track from invoice all the way through the mixing stage they couldn't show in books and records a specific recipe now on any given day there would be a variety of different washed flakes available to the production manager and that changes every single day he made a recipe with  could still possibly come up with what i have to produce this day which is this greatness quality of this color it's very much ad hoc done on the day that cannot be reconstructed now if if the question is  you know how do we know generally what use they actually did know generally what we use because the first time we report a color was into finished inventory or he said we have so much white so much green and so much ground polyester we recorded sixty percent of our production into white thirty t percent of production into green and eight percent into brown so if that's the only local recipe that was on the record if they want to take our fifty eight invoices and divide them that way that might have been reasonable but it would have required was very close to sixty thirty two eight and white is more desirable because it's more you can use a more instances of your like color fabric the green the brown will show through into spore the look of something so white is generally more desirable and also if you look around to restore most of the bottles the water bottles are white there's less much less grain and much less brown bottle flake around so for them to assume that we purchase ninety eight percent brown is actually absurd and in our view and not supported by the  client submit any alternate methodology to determine polish think now we submitted the entire list of fifty eight invoices twice first in supplemental response and then at fairford cation we said the room with them for forty hours and besides going through our records to determine that we could not reconstruct color specific usage they also spent a lot of time looking at every single employees and discussing every single invoice with us and we said look we all we can do is give you everything we have we don't know the color invoices but during those forty hours to do you think jeff that a looking at these invoices that we've given you let's do that we we suggest from the beginning they adopt in their plan a determination you take the total value of all the invoices to address the colors you know because we didn't think it would verify in the records they were going to walk our dog and see huge bags of mixed colored flakes red flakes blue flakes we were going to presume under any theory that  not come up in the war or yours discussion they asked when we went over the imports and they looked at them and they never suggested gee we're not going back to washington without colors we can see what they what they looked at and what they wrote the report is that the after her occasion if they wanted to we knew we gave them something that was one hundred percent verifiable not based on speculation and guesswork and we're looking at it we can from a we were going with it they looked at what we gave them and they were satisfied  but they were looking for callers who sipek right and that's why the statute says best available information in a perfect world we'd be out of this case with a double digit negative margin if we had callers on this it was like don't believe colors on those invoices on the other hand  a please the court under congress's judgement color specific valuation of the meat input for the subject merchandise was necessary it's nobody  contests the fact that what p s f the white subject merchandise is more expensive than the green and which is more expensive than the brown vs likewise on the record nobody contests that white pet flake is more expensive than green pet flake which is more expensive than other colors have department of commerce realize this fact all the parties realize this fact and in fact if you look at pages five or seven of the trial court slip opinion  tell us went through the multiple opportunities and multiple questionnaires the department of commerce sent to the plaintiff in order to get a handle on exactly how much of what color was purchased and what the price final results however it was on notice that this particular methodology was in play if you look at it two thousand and forty three and forty four of the joint a this merchandise and under congress's regulation one hundred c f r three fifty one point three zero nine any party interested party if it wishes to have a part of congress address some contention must in their case brief address the contention so afterwards and in both was provided with the opportunity to file rebuttal proof and if it wanted to object to the petitioners request that the that congress use rely upon the facts available that had the opportunity to do that there in fact it had the obligation and then the department of commerce in its final determination was obligated to address every one of the comments made by interested they didn't win their right to challenge everything to challenge the path of ala to challenge basically the wallace or the permissibility of of the line on the facts available the trial court disagreed although the trial  never made any sort of legal findings with respect to whether congress permissible relied upon the facts available but something implicit in the part of congress decision which we really can't get away from here is that this was the best available information to the agency it was the color specific value of the primary did but for the subject merchandise and that was that was very important there was a strong correlation between the price of the input and the price of the finished merchandise which nobody denies here and no other party provided an alternative methodology that took this critical characteristic of the merchandise into into account determination or to make that determination with a theory i know that there were roughly sixty four into a three minute only seven note those in points this contained references to color so essentially less than five percent of the invoices were used to make the determination is that a fair methodology and the why yes it's a fair bit although as you there's no evidence on the record demonstrating that those invoices were of commerce believes so based on its expertise and based upon the evidence and there's been no demonstration in fact it's the respondents to create an accurate record and there's been no demonstration of any sort of distortion caused by the use of the color specific invoices and those are the invoices that happen to have to notice the collar and there's no reason to believe that those invoices would be inaccurate for  this critical characteristic of the subject merchant question whether it was perfectly quiet his whether it was even reasonable we believe it was reasonable for a number of reasons first of all if you look at the last page  reply brief they ask for the corker first request is that they asked for the corps to impose a methodology of averaging the prices over all of the invoices which would even amplify the effect with respect to brown because you'd have known white and read invoices being averaged together to get a value for brown first of all that's the most important aspect of that second part of commerce in weighing the evidence here found that by using the invoices of known color for white and green which was ninety two percent of the subject merchandise that was ultimately sold in weighing the evidence congress concluded that this was the best way to solve this particular conundrum and in fact the trial court agreed between pages sixteen and eighteen the trial court addressed why commerce was reasonable and relying upon boy and then green and then also in although addressing the admitted imperfection with risk actual line upon the meeting invoices for brown noted that it was not going to reweigh the evidence and that it did not see a better methodology on the record and in closing i just want to add that department of commerce constantly attempts to calculate the most accurate accurate dumping margin in this case there is nothing on the record to way might have been at a much lower price than her representative you are because we have information from the other recycle producer in this case it's at page thirty of our brief mr medigap was also counsel to the other side producer in this case and he submitted color specific mission only need be reasonable under the circumstances and you cannot divest the commerce department of that authority congress understood that these cases are conducted in a short timeline with literally thousands of decisions that need to need and they put the facts available provision in there as a catch all to allow congress to create a value when there are gaps in the record and that's exactly what congress did here and your question judge seeing the above when congress was first notified and directly to page determination is contrary to law we do not exhaust a remedy there it's a legal issue for this court to decide whether they apply the correct law in their final determination with respect to the other issue as to whether a handful of invoices could be reliable we also address that issue at eight to zero six two eight two zero six five and eight two zero six eight where we talked about a small percentage of suppliers and not provide enough insight to construct color specific costs for the place now we were talking about in boise before you get the facts straight there are fifty eight invoices with sixty four lines on them the number of employees this isn't important what's important is the quantity in those and what is the use point for one percent of the quantity to apply to sixty percent of our cost that is totally unreasonable  the top of the invoice they use for all of our wife who was one supplier on the other side of the world that basically three contracts for one container that all have the same unit value it's basically one contract the highest value the next one drops off by a hundred then they drop off by a hundred more one hundred more what they did after they took those three in a waste for one container each off the top is signed the next thirty nine highest unit value didn't waste a brown that's absurd it's not supported by substantial evidence on the record they peppered their previous with at general evidence and anecdotal evidence which we don't dispute is in general that white cost more than green which cost more than brown so they couldn't possibly have a signed up for thirty nine of the top forty three line item unit values to brown and what they did  brought the white with green of other invoices that would a fairly average down their color specific cost and this requires all kinds of assumptions this requires that every supplier charges the same price but the price stays static over the six month p o discussions about the quality of the best quality greenlight sell better than the lower quality white we want to make all those assumptions what we did have a one hundred percent verifiable number we gave them everything we had and work with them in a room for forty hours it was never a suggestion that they could do what they did what they did is not supported by substantial evidence now i would say even if someone draws an adverse inference it has to be representative of what they did was not representative of our database as you pointed out and it certainly wasn't reasonable but our argument on appeal is that they had to apply a different standard the best available information standard if we had no market purchases the information would not have been going there was necessary but it would not have been available and they would have gone to india for the value so the only information that was on the record was a dataset of fifty eight invoices most of which didn't have a color if they want to apply four point one percent of our tonnage to the value they selected that's fine but then for the other ninety percent of the value take it from the basket unit value and then we double digit negative numbers they say are the information is not on the record it was on the record because my other clients values for gross dirty flakes were on the record not the once a petition or suggest they're like saying you should compare a lump crabmeat t percent grain we couldn't possibly have produced what they verify with their own eyes that we produced if all we were buying was brown and so there absolutely is a linkage because we showed we only had two months of inventory there were no flakes in the art and we would not have been able to produce what they value of electricity cannot fail to cooperate in investigation so it's whatever they're talking about the electricity has nothing to do with this case adverse inferences and facts available to the data the amount of the input not the value the values found as congress specified six hundred seventy seven b let me just have you one question i understand mr smith to be saying that he is always available and in fact  and shape proof and the lower court's opinion agreeing with us that sixty seven six hundred seventy seven b applies when it when you're talking about the valuation of the factor not the amount of the factor sixteen seventy seven be applies of twenty five years of precedent in support of our position you don't have a single precedent in support of their position right thank you only th