1.5% 1.5% 1.5% 1.5% 1.5% 1.5% 1.5% OK. The next case is number 14, 1234. Apex exports against the United States. Mr. Yokees has asked the pronunciation. Yes. Let's see. Thank you, Your Honor. May it please the Court. My name is David Yosis on behalf of the ad hoc shrimp production committee. This case involves a crucial but relatively narrow legal question in the any dumping law
. And the question is this, when commerce calculates a margin of dumping and calculates an export price, and it calculates an export price based on the price to a US customer that includes as a term of sale, that the foreign exporter must pay any any dumping duties on that sale. Does commerce have to adjust that price in order to account for this obligation in the exact same way as the statute requires it to account for the cost of freight and the cost of any other expense or obligation that the exporter incurs? Did you say that you have to pay export duties? So when commerce, you're reading from the contract, is that what you're doing? Yes, from the contract, actually from the questionnaire responses of the foreign exporters. Is that in the record? Yes, that the all the contracts are delivered duty paid is in the record and it is conceded by the other side. The record is I'm looking here at the questionnaire responses, decided in our brief. So I'm looking here at the appendix page 52. In the case of US sales, all sales were made on the delivered duty paid basis. I was just, I just called because when you said they must pay the export duties. They must pay the any dumping duties that are so so basically they must pay all the foreign seller undertakes as an obligation to pay every any expenses to get the goods to the US customer and that includes the payment of the any dumping duty. And so the question is does commerce have to adjust for that? Because what commerce is doing in an any dumping calculation? Is it comparing normal value to export price at the same point in the chain of commerce? And what they're doing is calculating comparing an expatriate price to an expatriate price. So you agree I suppose under Wheatland, our decision in Wheatland, that any dumping duties are not important duties within the many of this provision, right? That's correct. The statute says to deduct any cost, charges or expenses and United States import duties. So why how can costs include any dumping duties when Congress separately addressed import duties? That would suggest that import duties are not part of cost, doesn't it? It suggests that, well, I guess one of the questions is if in fact our interpretation is correct, then any, then import duties would also be costs and so why does the statute have them there separately? And if it has those there separately, why not also any dumping duties separately? I understand your question. And I think the answer to that is, first of all, I don't know why the statute was drafted the way it was, but I believe that the expression in the United States import duties is there for clarity. That if it is in fact a cost, depending on the way the way that... What doesn't say cost including import duties, at least import duties separately? And it does not make sense that they would be deducted as costs
. If in fact they are a cost, if they are not, there are many provisions in the any dumping law that are written in the context of the original investigations. That seems to me a problem here, because while the statute, as I think you're suggesting, may not be clear. There's a chevron issue here if the statute is unclear, right? Well, if the statute is not directly addressed the issue at hand, then there would be an issue of chevron deference. I believe here, so why, if the statute is ambiguous, why don't we defer to commerce's interpretation? For two reasons. One is, in this case, it is the respondents themselves who say there's no difference between the any dumping duties and any other costs that they incur. And we've cited a number of places on the record where they state that, just as an example, the Appendix page 91. The payment of the any dumping duty is as necessary and fundamental to the sale of the frauds and shrimp in the United States as ocean-free or regular cost. But they don't say it's a cost within the media of the statute. But it's something that they have to pay. Well, that doesn't necessarily make it a cost. Their view is that costs don't include any dumping duties. So the question is, why is that not entitled to chevron deference? And I would say, first of all, because the ordinary meeting of the term cost includes something that you're required to pay. And if they admit that they are required to pay this, and so it would seem obvious to be involved. Maybe that would be true. A cost appeared alone, but there's also this import duties thing, which suggests the cost doesn't include import duties. So you least got an ambiguity there. And if there is an ambiguity there, I would suggest that we then fall back on isn't a reasonable interpretation of the statute
. And if that is in fact the approach that you take, then the goal of this provision of the statute, I believe all parties agree, is to ensure that you have an apples to apples comparison. That you are, in fact, comparing the what the X factory price on both sides. And in page five of our reply brief we have, we have some numerical examples, which we submitted to the department, which we submitted to the court below, which is in our initial brief. And we've summarized it in the table there. And if you look at that table, if you use commerce's methodology, please near a point basically that it's not a reasonable interpretation of the statute. Because it distinguishes between two situations, which ought to be treated the same. In your view, in other words, that the payment by the foreign importer to commerce, to commerce of the anti-dumping duties or whoever gets the customs should be treated the same as the payment to the US importer. It should be treated the same as for example the freight charge that they are required to pay. I thought you were reading the claim that anti-dumping duties are treated in two different ways, depending on whether the foreign entity pays them directly or reimburses the US import. Yes. That seems to me your basic argument is to why the commerce's position here is arbitrary, that those two situations ought not to be treated differently. I think there are two reasons. One is because you don't actually get to the X factory price as the example shows on page five. I think you also have the situation where if you had exactly the same price, you have a price here that's delivered duty paid in the United States. You had exactly the same price on a cost and freight basis. So your argument to make sure I understand you're not drawing a distinction between whether the exporter pays the jumping duty or some third party importer. Correct
. I guess the point that I would make several points I guess, and I just want to make sure that they're distinct. The first point is that the position of the commerce department as I understand it is, as long as someone pays the any dumping duty we don't really care who it is. Yes. And we agree with that. The question is has the any dumping duty been calculated correctly in the first place? In order to calculate the any dumping duty, you have to subtract from the price to the US customer everything that is not payment for the merchandise in order to get to the X factory price. And if the exporter is paying the any dumping duty and you don't take that into consideration, you're not getting to the X factory price. And that's what our numeric example show. What commerce says is, well, yes, but any dumping duties are different. And this gets to the point that Judge Dyke is, I believe, raising. If any dumping duties are never to be taken into account, we have this anomalous situation of reimbursement. So let's say the your calculating what commerce does is it calculates and any dumping duty based on a price to the US customer of $100. And whether it's cost and freight or whether it's duty in which case the it's cost and freight the buyer pays the duty is the importer record and pays the duty. If it's delivered duty paid, the seller is the importer record and pays the duty. Commerce says we treat those exactly the same way we don't care. I think you're making this too complicated. I mean, isn't my question right that you say that commerce has a reasonably if it doesn't treat the payment to commerce of the any dumping duty the same way that it treats the reimbursement of the US importer of the any dumping duty. And they say no, no, you're wrong
. That's reasonable because when the reimbursement takes place that doesn't increase the price, whereas when they pay to commerce directly, that's going to increase the price. Well, I guess what I'm saying is if they sell about $100 under either scenario, I'm sorry, I don't know. I'm trying to be clear and I think and I'm sorry that it's complicated because it's I think necessary to understand why why their point is incorrect. If you're deducting a hundred if it's a hundred dollars either way, if you say the buyer pays the any dumping duty. So the buyer is not really paying let's say $104 because they're paying 100 for the merchandise and $4 in any dumping duty and that's the fair price. Under what under under the statute and then the exporter says, but you know what, as a separate transaction, we're going to give you back that $4. So you really only have to pay 100 and we'll pick it up. Commerce says, ah, that's reimbursement. We're going to make that deduction, but here it's just built into the price. It's exactly the same thing. If they say we're going to do a delivered duty paid at $100 and we'll pay that $4 ourselves. We won't go through making you pay it and then reimbursing you. We'll just pay it ourselves. Commerce says, no reimbursement. You can't reimburse yourself, but economically those are identical and you're right judge like that's exactly exactly the point is that these are economically identical transaction. I didn't play the right. Well, no, but I mean, I mean, that's that's our argument
. That's our argument. These are identical transactions. Commerce trees from differently. And there's no, there's no express rationale. Why, why one situation is treated differently from the other. And I think that's here from the government. I think the government does believe that they have a rationale for trees and then differently. I come out this a little differently. Let me ask you this. The you're trying to say that an anti dumping duty is a cost incident to bringing the merchandise into the country. Yes. And the sort of things that we that's an incident to bringing it in is struck me that an anti dumping duty is incident to mean results from. I think that the anti dumping duty is incident to a pricing decision that the exporter may. The exporter decided that I'm going to I'm going to put this price in and what the American has buying goods has to pay. That's that's a voluntary didn't have to do that in order to bring the goods from say China the United States you don't have to make that decision. The pricing decision, right. So you don't have the exporter can eat the duty himself
. I don't know if they want to. Well, I guess I guess the question is trying to get at the plane meeting of a cost incident to the way I look at it wasn't an anti dumping duty is not incident to bring the United States. It's incident to a decision that an exporter made to pass on the duty. Well, the idea is that and it's on that interpretation then your anti dumping duty would never be a cost incident to. Well, I guess the question is what what about free which is the which is sort of the plastic cost that is incident to and it's incident to free this incident to bringing something from one place to the next in each instance that you're going to bring the goods from China the United States is going to be free. But there doesn't necessarily need to be in the church price is yours in the United States the pump up for the end I don't think. Right and for the voluntary choice that doesn't depend on it to me it doesn't look like it's incident to importation well it becomes it's a fair to things like like transportation. And I think I think it becomes incident to importation when it when it's a term of sale when as as a term of sale the responsibility for paying that duty is placed on the seller. Okay, so is there an if I created some ambiguity in the statute. Yeah, by saying when you look at and I don't think duty is that a cost that's incident to importation you say well it is when it is when it is when it is included in the price that you're using to calculate export prices included in the price to the to the unequal example if it was extracted from the employer on the side not as part of the price. There wouldn't be an absolutely that's correct because it's not not because it's not a cost but because it's not included in the price that is being used to calculate the export price you're you're looking at the price of the US fire and saying okay now what's the what's the X factory price. So I think that's the equivalent of that so I've got to subtract out things like freight and so this is the the practice of commerce that you're objecting to here as long standing I believe it is a long standing practice. So and it's a long standing practice that gets itself into the world through notice and comment real making in connection with the decision to create the export price. This is not a notice and comment real making like real making it's for the chevron point it's chevron difference that's according to them because they have used notice and comment and as they did in the preceding case in connection with a with an actual importation. I would say that the the notice and comment is in this case itself right and as it was in the leading precedent that Judge Dijk referred to when we began the argument. Yes although in that case my question is yes even if chevron difference isn't to be recorded why wouldn't the stigma or difference be appropriate here. Because it is in it is a case by case determination that commerce makes that says what is in fact a cost that we needed to duck for this sale
. So the agency has say a 30 year practice of saying when we're concocting or getting our export price we don't exclude that I dumping do these and they've done that in a whole series of proceedings just like this one I'm saying why why wouldn't skidmore difference be appropriate to the agency's practice. Well I think even there even under skidmore difference you are the it still has to be a reasonable interpretation of the statute. We haven't heard you are from the government why it is that they don't exclude and I don't think do it is but we know it's because they believe it multiplies they had a dumping do it. I think we adjusted this line for the moment we'll say if you're about time this year. All right thank you very much. Mr. Curland. Good morning Your Honours. Thank you. I want to be clear right up front that at the time the Department of Commerce performs this calculation that is at issue this section 1677 AC calculation of the export price. The anti dumping duty the final assessed anti dumping duties that ad hoc print wants commerce to deduct from the export price do not exist. The court below in this case the apex case the page eight of the decision talked about a two step process by which commerce performs its calculations in an anti dumping duty proceed. And the position is that commerce to perform both steps of the calculation come to effectively a final number for the dumping margin treat that final number as a provisional final dumping margin and then go back to the beginning of the calculations and start over again by sticking that number back into the calculation of export price and going through it again. And so to address your honours question when one talks about whether this is a cost charge or expand or a United States import duty that is incident to the importation of subject subject merchandise. I don't think we need to get quite as far as your owner was getting. It's not a cost that exists at the time of the calculation and in that sense cannot be incident to the importation of subject merchandise. It is what is being calculated in the anti dumping duty
. It's also important to note the infinite recursive nature of the calculation that ad hoc print is advocating and I don't want to get too far into the weeds on this but to be clear if the anti dumping duty duty being calculated or a cost and they start out at five dollars and then one has to engage in this recursive calculation where by plugging that five dollar number back into the calculation. And doubling it to $10. At that point then the anti dumping duties are $10 and if the five dollars or five dollar anti dumping duties are a cost or the $10 anti dumping duty. And so you'd have to plug it back in again and you'd end up with $20 and $40 and $80. There is no mathematical or legal reason why you would be appropriate to stop. I asked you, you make these arguments. They're really only asking for the first cycle of this recalculation as well as I can tell from their argument. That's true, Your Honor. That's their position and it is totally arbitrary and has no basis in math or law. And look, ad hoc is the party. The initial transaction, it isn't that arbitrary. It's what it's the export price and the import price and you just do this recalculation. That's correct. But it's ad hoc here is the party that's taking a hyperliterialist construction of the statute. And so there is no basis to stop merely because it makes ad hoc's position sound more reasonable if they argue that you could stop at one. Because at the end of the day, if the anti dumping duties are a cost and the anti dumping is ballooned from $5 to $10, those are now the anti dumping duties. They're $10 and that's no less the cost under ad hoc's interpretation of the statute than the $5
. I think again you are embellishing on what they are arguing. They're asking for that first recalculation. Well, Your Honor, I respectfully disagree. Ad hoc attempts to make its position more reasonable by saying that commerce could arbitrarily stop at one iteration of this recursive calculation. But there's no basis in math or law for stopping at that point. And there's no basis for not stopping either. Well, yes, there is. Because the outcome is that you end up with zero. Well, and that's the objective. And that's the objective. And they are asking for a ridiculous procedure. Well, that is the absurd ridiculous consequence of what ad hoc is advocating. And it's precisely what the court below recognized at page, I believe it's page seven of the opinion below, where the court said that it was that the calculation that ad hoc was advocating would be an infinitely recursive and circular calculation. And it was appropriate for commerce to avoid, I'm sorry, interpret the statute to avoid this quote unquote absurd result. And it's a matter of math and definition. If anti-dumping duties are a cost and the anti-dumping duties balloon from again $5 to $10, then that $10 and anti-dumping duties is no less a cost than the $5 was. And so you would have to engage in that infinite recursive calculation. Could you help me by addressing the question of why it is reasonable to treat the reimbursement of the US importer differently than the direct payment of the anti-dumping duty? Yes. Maybe your circularity are even as part of that, but tell me apart from the circularity are even why that's right. I think that's a slightly different issue when we are prepared to address that. So let me jump into the meat a little bit and then I'll get back to some of the broader points about the reimbursement regulation. The problem with ad hoc's argument is that it's really not the same thing and it's sent there and tailed on the horns of a dilemma. Because the idea of reimbursement is that, which by the way, everyone agrees that this is not a situation that falls under the reimbursement regulation. It's that reimbursement did not occur. So it's not covered by that and it's not a situation that's intended to cover. But the idea in the reimbursement situation is that someone is paying the importer back the $4 of duties. So let's say the importer is going to pay $100 plus $4 in anti-dumping duties. Someone made the exporter is now saying, I'm reimbursing that to you so you don't have to pay the duties. Here, a fundamental premise of ad hoc's argument because of the statutory language is that the duties are being passed along in some shape or another to the export price. The statute refers to costs, charges, or other expenses that are included in the export price. And therefore, in order to be in order to ensure that its claim arguably falls under the statute, ad hoc keeps arguing that the duties here are being passed along or included in the export price. So in a sense, it's precisely not what's going on in the reimbursement situation because in the reimbursement situation, you're concerned about the idea of someone having to pay the duties but then having the duties paid for them. Some of the broader points I referred to earlier, these are points that.
. Could you help me by addressing the question of why it is reasonable to treat the reimbursement of the US importer differently than the direct payment of the anti-dumping duty? Yes. Maybe your circularity are even as part of that, but tell me apart from the circularity are even why that's right. I think that's a slightly different issue when we are prepared to address that. So let me jump into the meat a little bit and then I'll get back to some of the broader points about the reimbursement regulation. The problem with ad hoc's argument is that it's really not the same thing and it's sent there and tailed on the horns of a dilemma. Because the idea of reimbursement is that, which by the way, everyone agrees that this is not a situation that falls under the reimbursement regulation. It's that reimbursement did not occur. So it's not covered by that and it's not a situation that's intended to cover. But the idea in the reimbursement situation is that someone is paying the importer back the $4 of duties. So let's say the importer is going to pay $100 plus $4 in anti-dumping duties. Someone made the exporter is now saying, I'm reimbursing that to you so you don't have to pay the duties. Here, a fundamental premise of ad hoc's argument because of the statutory language is that the duties are being passed along in some shape or another to the export price. The statute refers to costs, charges, or other expenses that are included in the export price. And therefore, in order to be in order to ensure that its claim arguably falls under the statute, ad hoc keeps arguing that the duties here are being passed along or included in the export price. So in a sense, it's precisely not what's going on in the reimbursement situation because in the reimbursement situation, you're concerned about the idea of someone having to pay the duties but then having the duties paid for them. Some of the broader points I referred to earlier, these are points that... Let's go rash and out for treating the reimbursement as it is in the regulation. Well, that's precisely where I was going in honor and this was discussed. And is there an evil that was being aimed at that being cured by the regulation? Yes, we had to use words like evil at the honor. But this is a page of 1375 and 1376 of the ad hoc front decision, the other decision that was originally on appeal as a companion to this one and then was ultimately dismissed, where the court discussed the reimbursement regulation in some detail. And the point is the reimbursement regulation has to do with a specific policy incentive where commerce is seeking to disincentivize precisely that type of behavior, the reimbursement of duties. Why are they trying to disincentivize? Because it creates a problem. Because it's effectively a reduction in the price. Right? Well, it's a reduction in the price. I don't think that's quite how commerce looks at it. Commerce would say that it is attempting to undermine the imposition of the anti-dumping duties because they're implying that... And commerce is always going to make confusing. But the question is, just make it simple. It's a reduction in the price. And that's why it has to be treated the way it is
.. Let's go rash and out for treating the reimbursement as it is in the regulation. Well, that's precisely where I was going in honor and this was discussed. And is there an evil that was being aimed at that being cured by the regulation? Yes, we had to use words like evil at the honor. But this is a page of 1375 and 1376 of the ad hoc front decision, the other decision that was originally on appeal as a companion to this one and then was ultimately dismissed, where the court discussed the reimbursement regulation in some detail. And the point is the reimbursement regulation has to do with a specific policy incentive where commerce is seeking to disincentivize precisely that type of behavior, the reimbursement of duties. Why are they trying to disincentivize? Because it creates a problem. Because it's effectively a reduction in the price. Right? Well, it's a reduction in the price. I don't think that's quite how commerce looks at it. Commerce would say that it is attempting to undermine the imposition of the anti-dumping duties because they're implying that... And commerce is always going to make confusing. But the question is, just make it simple. It's a reduction in the price. And that's why it has to be treated the way it is. Well, it's wiping out the duties that this party is having to pay. And at least in ad hoc's formulation of this speech... Very much. ...and I don't know. But the theory is that when the importer pays it directly, the importer, or the foreign exporter pays it directly, it's going to increase the price because it has to pay the anti-dumping, doesn't it? Which is precisely different from the idea of reimbursement when the duties are being... Right. ...and there's a separate, but related issue here that I want to make sure I connect, which has to do with the duty absorption from vision
. Well, it's wiping out the duties that this party is having to pay. And at least in ad hoc's formulation of this speech... Very much. ...and I don't know. But the theory is that when the importer pays it directly, the importer, or the foreign exporter pays it directly, it's going to increase the price because it has to pay the anti-dumping, doesn't it? Which is precisely different from the idea of reimbursement when the duties are being... Right. ...and there's a separate, but related issue here that I want to make sure I connect, which has to do with the duty absorption from vision. Because it seems to me that really the undertone of ad hoc's focus on just these types of issues has to do with the notion that the exporter here is effectively in some way absorbing the duties for the importer. And that's problematic because I'm sorry, not the importer, the U.S. customers. And they want those U.S. customers to pay the full duties. That's precisely covered by the legislative history that we discussed in our brief. Why is freight treated differently? I don't think this argument has been made, but why is freight treated differently than anti-dumping? Because you would think that if the foreign exporter pays the freight that that would cause it to increase its U.S. price, just as paying the anti-dumping duties, of course, to a positive increase its U.S. price. Why is distinguishing between freight payments and anti-dumping payments? Because these types of payments, freight, customs broker expenses, normal custom duties, are all the normal types of costs that one experience is in shipping merchandise from Europe, say, to the U.S. Whereas, in this report noted this in Wheatland, Congress and Commerce have historically recognized that these types of duties, what are called special dumping duties, and the court has an extensive analysis of this at 1361 and 1362 of the Wheatland case, are not ordinary costs. They're the trade remedy
. Because it seems to me that really the undertone of ad hoc's focus on just these types of issues has to do with the notion that the exporter here is effectively in some way absorbing the duties for the importer. And that's problematic because I'm sorry, not the importer, the U.S. customers. And they want those U.S. customers to pay the full duties. That's precisely covered by the legislative history that we discussed in our brief. Why is freight treated differently? I don't think this argument has been made, but why is freight treated differently than anti-dumping? Because you would think that if the foreign exporter pays the freight that that would cause it to increase its U.S. price, just as paying the anti-dumping duties, of course, to a positive increase its U.S. price. Why is distinguishing between freight payments and anti-dumping payments? Because these types of payments, freight, customs broker expenses, normal custom duties, are all the normal types of costs that one experience is in shipping merchandise from Europe, say, to the U.S. Whereas, in this report noted this in Wheatland, Congress and Commerce have historically recognized that these types of duties, what are called special dumping duties, and the court has an extensive analysis of this at 1361 and 1362 of the Wheatland case, are not ordinary costs. They're the trade remedy. They're what's being calculated. The idea that the trade remedy duties should be based on the trade remedy duties is totally inappropriate. It would be odd indeed, as there were some colloquy earlier, it would be odd indeed if Commerce defined the statute listed United States import duties, made clear that those referred to normal customs duties and that anti-dumping duties were, quote unquote, special dumping duties, which were a separate thing, but then intended otherwise to include all of that in other cost charges or expenses. That's why at the end of the day, ad hoc position is fundamentally irreconcilable with this court decision in Wheatland, because if anti-dumping duties or other cost charges or expenses so are the safeguard duties that this court rule do not need to be deducted in Wheatland. The court was certainly aware of the full language. It's very hard to believe that the court would have come out the way it had in Wheatland if all of these types of special trade remedy duties should be treated as other cost charges or expenses. The court noted the legislative history that I was referring to a few moments ago, where in this type of duty absorption situation, even when it's canonically occurring, Congress has said in the legislative history that our duty absorption is not the case. The recommendation remedy is not meant to require commerce to treat anti-dumping duties as a cost. That's coupled with the fact that the Senate reported the time, because remember this is all the big 1994 legislation, said that this issue was being resolved by the Court of International Trade at this time, and we expect commerce to follow the decision of the Court of International Trade. Certainly not a ringing statement that Congress believed that the statute would have been unimigrated. The Court of International Trade had come out the other way, we'd be forced to follow them. No, Your Honor. This court is not bound by the decisions of the Court of International Trade. At the same time, it's clear that Congress did not think its statute was so unambiguous that it wasn't subject to interpretation by the Court of International Trade. Again, this was a hotly debated issue at the time. One of the administrative determinations underlying that Hugovin's decision, the net of the carbon steel pipe from the Netherlands case that cited throughout the briefs, talked about how this was a really hotly contested issue, this idea whether duty should be treated as a cost. And Congress didn't simply decline to enact that provision
. They're what's being calculated. The idea that the trade remedy duties should be based on the trade remedy duties is totally inappropriate. It would be odd indeed, as there were some colloquy earlier, it would be odd indeed if Commerce defined the statute listed United States import duties, made clear that those referred to normal customs duties and that anti-dumping duties were, quote unquote, special dumping duties, which were a separate thing, but then intended otherwise to include all of that in other cost charges or expenses. That's why at the end of the day, ad hoc position is fundamentally irreconcilable with this court decision in Wheatland, because if anti-dumping duties or other cost charges or expenses so are the safeguard duties that this court rule do not need to be deducted in Wheatland. The court was certainly aware of the full language. It's very hard to believe that the court would have come out the way it had in Wheatland if all of these types of special trade remedy duties should be treated as other cost charges or expenses. The court noted the legislative history that I was referring to a few moments ago, where in this type of duty absorption situation, even when it's canonically occurring, Congress has said in the legislative history that our duty absorption is not the case. The recommendation remedy is not meant to require commerce to treat anti-dumping duties as a cost. That's coupled with the fact that the Senate reported the time, because remember this is all the big 1994 legislation, said that this issue was being resolved by the Court of International Trade at this time, and we expect commerce to follow the decision of the Court of International Trade. Certainly not a ringing statement that Congress believed that the statute would have been unimigrated. The Court of International Trade had come out the other way, we'd be forced to follow them. No, Your Honor. This court is not bound by the decisions of the Court of International Trade. At the same time, it's clear that Congress did not think its statute was so unambiguous that it wasn't subject to interpretation by the Court of International Trade. Again, this was a hotly debated issue at the time. One of the administrative determinations underlying that Hugovin's decision, the net of the carbon steel pipe from the Netherlands case that cited throughout the briefs, talked about how this was a really hotly contested issue, this idea whether duty should be treated as a cost. And Congress didn't simply decline to enact that provision. It declined to enact it, turned around, enacted the duty absorption provision, and then explicitly stated that this provision, even when absorption is canonically occurring, should not be taken to treat duty as a cost. And at the same time, the committee said we expect Congress to follow the Court of International Trade's decision. Within a few years, the Court of International Trade had decided several cases that agreed with Congress. This is a decade long practice that has gone on. And it's been upheld not just with respect to U.S. import duties, but the broader language of cost charges or expenses by my count, six different decisions of the Court of International Trade in addition to a very similar decision of this Court in Wheatland tube. And certainly while this Court isn't bound, the Court in the past and in cases like international products and union steel has taken, has taken heart in the fact that its decision has been consistent with that of the expert court in these cases. Your bottom line is that the statute's ambiguous on the particular question and we should give Chevron difference. Yes, sir. Now you've exhausted Ms. Levinson's time. Is there any new points that you need to raise? No, you're not. Oh, I'm sorry, not for much. Right. Just take one minute. Okay
. It declined to enact it, turned around, enacted the duty absorption provision, and then explicitly stated that this provision, even when absorption is canonically occurring, should not be taken to treat duty as a cost. And at the same time, the committee said we expect Congress to follow the Court of International Trade's decision. Within a few years, the Court of International Trade had decided several cases that agreed with Congress. This is a decade long practice that has gone on. And it's been upheld not just with respect to U.S. import duties, but the broader language of cost charges or expenses by my count, six different decisions of the Court of International Trade in addition to a very similar decision of this Court in Wheatland tube. And certainly while this Court isn't bound, the Court in the past and in cases like international products and union steel has taken, has taken heart in the fact that its decision has been consistent with that of the expert court in these cases. Your bottom line is that the statute's ambiguous on the particular question and we should give Chevron difference. Yes, sir. Now you've exhausted Ms. Levinson's time. Is there any new points that you need to raise? No, you're not. Oh, I'm sorry, not for much. Right. Just take one minute. Okay. Thank you, Ron. I appreciate that. The point that I want to get right to the point and that is discussing this issue of reimbursement. I want to make it very clear. First of all, I represent the plaintiffs of Pellys, Falcon Marine exports and and apex. Now, there is no issue of reimbursement. This Court has held that an exporter cannot reimburse itself and I believe that case was agri Dutch versus United States. The exporter sitting in India, the exporter is also the importer of record. That same exporter is taking on the burden of selling to US customer. It is increasing its price so that it can account for any potential liability under the anti-dumping law. Now, what plaintiffs or what defendants, I guess in this case, are suggesting is that they should be penalized because they are trying to do exactly what the anti-dumping law is intended to do. The purpose of the anti-dumping law is to raise prices in the United States and that is what is happening. They would like when they are passing along the anti-dumping duty, they are raising the price, they would now like that price to be taking out. The way to the authorities is overwhelming. I don't think I have ever been involved in a case in which there is so much authority. There is Wheaton and there is Hougaven, there is a legislative history of the tariff act in 1921. There is a legislative act of the absorption statute
. Thank you, Ron. I appreciate that. The point that I want to get right to the point and that is discussing this issue of reimbursement. I want to make it very clear. First of all, I represent the plaintiffs of Pellys, Falcon Marine exports and and apex. Now, there is no issue of reimbursement. This Court has held that an exporter cannot reimburse itself and I believe that case was agri Dutch versus United States. The exporter sitting in India, the exporter is also the importer of record. That same exporter is taking on the burden of selling to US customer. It is increasing its price so that it can account for any potential liability under the anti-dumping law. Now, what plaintiffs or what defendants, I guess in this case, are suggesting is that they should be penalized because they are trying to do exactly what the anti-dumping law is intended to do. The purpose of the anti-dumping law is to raise prices in the United States and that is what is happening. They would like when they are passing along the anti-dumping duty, they are raising the price, they would now like that price to be taking out. The way to the authorities is overwhelming. I don't think I have ever been involved in a case in which there is so much authority. There is Wheaton and there is Hougaven, there is a legislative history of the tariff act in 1921. There is a legislative act of the absorption statute. They all agree. Congress agreed. This Court has spoken. The Court of International Trade has spoken. The anti-dumping duties are not to be deducted from US price. I guess my minute you are on your honor. Thank you. Thank you. Thank you very much, Your Honor. Just very briefly, the point was made several times about reimbursement. I think one of the things that I think was very clear in the colloquial that we heard is that the purpose of the reimbursement regulation is to make sure that the price we are accurately reflecting whether in fact the price in the United States has been raised to the fair price. If there is reimbursement going on, then perhaps effectively the price is not accurate and this situation is the same. I would refer the Court to the preamble in 1997 when the Court, when Commerce and its current regulations expanded the reimbursement regulation to cover not only reimburse any dumping duties but reimburse countervailing duties. In response to some comments saying that that was inappropriate, Commerce says it wasn't appropriate to do so. In our brief page 44, Commerce says the reimbursement is directly tied to such sales and is no different in substance from any of the other types of price adjustments. If that is not different, neither is this. On the question of the infinite recursiveness, as Judge Newman pointed out, we are saying it should only be done once
. They all agree. Congress agreed. This Court has spoken. The Court of International Trade has spoken. The anti-dumping duties are not to be deducted from US price. I guess my minute you are on your honor. Thank you. Thank you. Thank you very much, Your Honor. Just very briefly, the point was made several times about reimbursement. I think one of the things that I think was very clear in the colloquial that we heard is that the purpose of the reimbursement regulation is to make sure that the price we are accurately reflecting whether in fact the price in the United States has been raised to the fair price. If there is reimbursement going on, then perhaps effectively the price is not accurate and this situation is the same. I would refer the Court to the preamble in 1997 when the Court, when Commerce and its current regulations expanded the reimbursement regulation to cover not only reimburse any dumping duties but reimburse countervailing duties. In response to some comments saying that that was inappropriate, Commerce says it wasn't appropriate to do so. In our brief page 44, Commerce says the reimbursement is directly tied to such sales and is no different in substance from any of the other types of price adjustments. If that is not different, neither is this. On the question of the infinite recursiveness, as Judge Newman pointed out, we are saying it should only be done once. That is what Commerce does in the reimbursement regulation. It only does it once. We are not asking for anything more than that. If the Court thinks that perhaps it is for Commerce to decide in the first instance how it should account for the fact that any dumping duties are included in the price used to calculate export price, the Court could always remand to Commerce with instructions to take account of it and let Commerce decide in the first instance how to do it. We think deducting it once makes sense. It gets you to the right number as our examples show. It is what Commerce does in the reimbursement regulation. What can't be sustained in our view is to say Commerce should just ignore it. When in the case of reimbursement, they do make an adjustment. In this case, which economically is identical to it, they don't make an adjustment. With respect to Wheatland 2, the holding in Wheatland 2 is that any dumping duties are not United States import duties, nothing more. Why doesn't the statute mention any dumping duties? Because in an original investigation, which is what a lot of the statutes are drafted to address an original investigation, there's no any dumping order. There are no any dumping duties one way or the other. But in the situation of a review, where the order is in place and you're going back to calculate a new margin of dumping, the any dumping duties may or may not, depending on the facts of the case, be a cost that's included in the price. In this case, there's no dispute that the any dumping duties are included in the price. And finally, let me just respond to the point that the any WDUD doesn't exist when the duty is calculated. Sometimes freight doesn't exist until the administrator review either
. Our reply brief at page 10 gives some examples. Okay. Thank you. Thank you. Thank you. The case is shaken under submission