Why are we sitting there? Our next exercise is mostly journal. Please sit here. We'll sit here for a while. Turn around. The individual is now around the floor. You sit here. You're not the most important person. Please sit here. So, you can sit here. Can't sit here. That's up and down. Please turn around for a minute. Thanks. Thank you. You're welcome. Thank you. You're welcome. Thank you. Good. Good
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. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. s herum let's go. All right. Thank you. The United States, board of bills, is federal park. Now, driven and incessant, not paid the United States, is the monogamous bill. Thank you. You're welcome to see this. Any good morning, everyone. For a circuit case this morning is number 14, 17, 44
. Where are Santa Madison and where are we? Again, the United States. This is Vindosa. Good morning. May I please the court? My name is Julie Mendosa, and I'm appearing on behalf of the Plains of Helen Ford on Monmouth Month. I plan to use 12 minutes of my time for my affirmative presentation and reserve three minutes for rebuttal by my partner, Donna Pamela. In this case, the Congress Department unlocksly applies targeted dumping methodology to Boris Don in the 2010-2011 review. Despite uncontested record evidence, the Boris Don increased its US crisis after February to account for the increase in cost of raw materials. As record evidence confirms raw materials constituted a very high percentage of the total cost of the product under consideration, and therefore it was economically sensible for Boris Don to increase its prices. Or use the US financial development shipment by shipments. No, I believe your honor that the Congress Department should have used the average to average methodology in comparing their prices and not resorted to the target dumping provision as an exception because I believe that they could not meet the requirements of the targeted dumping provision. Well, is that really what you argued? Is it that they should use average to average or are you saying that in using the methodology they use, they still have an additional step that they have to undergo? No, your honor, actually, our argument is that under, commerce proceeded under 19 CFR 351.414C1, which provides that in both investigations and reviews, the Commerce Department will use average to average methodology. In our case, they also said that in the event that they find that there is targeted dumping, they would resort to the A to team methodology. And therefore, commerce's decision to resort to the A to team methodology depends on whether or not they were lawfully applied their targeted dumping provision. Otherwise, they had to use the ADA methodology, which we believe is accurate. Our margin was zero with ADA. So you're saying they can't get to a targeted dumping determination though until they consider the raw material price increases? No, I think what I'm trying to say, Your Honor, is that once they start with the premise that they should use the average methodology, commerce then said, only in the event that we find that the requirements of 1677F1D1BID, the ID of the targeted dumping provision, only if those requirements are met, will we then use the A to team methodology? And your view is 1677F1D requires reasons. No, Your Honor, not actually reasons. I believe what our position is, is that in this case, because we presented unconverted and unconverteable evidence, and which commerce did not dispute, that in fact the price increase was fully explained by the changes in the cost, as a consequence, that evidence went directly to the question of whether there was targeted dumping
. Well, the statute speaks in terms of reasons why one and two may not explain the price difference. I'm just saying that given the cost of the product, that's why one and two, Connics pointed. Well, yes, in part. I mean, what we're saying is that with respect to the requirements that commerce find a pattern of price differences, the first test, we believe, and it goes on to say, in the FAA, ID targeted dumping may be occurring. We believe that because we presented evidence that in fact targeted dumping was not occurring. In fact, this was simply a matter of pricing in order to take into account increasing raw material prices into avoid dumping, that that requirement was not met. Moreover, commerce's test, that is, can the normal methodology ID average average take into account this pattern, we believe the answer to that question should have been yes, because it did not constitute targeted dumping, and therefore commerce had no basis for resorting to an exceptional methodology. So you want to insert essentially requirements that the pattern of price difference will be unexplained by other variables? No, Your Honor, I think what we're saying is that Congress didn't just say that there had to be significant price differences in the FAA, they said, ID targeted dumping may be occurring. And therefore, we believe that commerce must look at the question of whether targeted dumping is occurring. The problem is that if they move, when they move to step two, and they say, can the normal methodology take into account the targeted dumping, or take into account this pattern of prices that we see, commerce simply doesn't even look at whether they're targeted dumping. In fact, they say all this provision has nothing to do with targeted dumping, and they say, we're just going to look and see what the resolve is. So I think your answer to my question actually was yes, that the price differentials have to be unexplained by something other than targeted dumping. Yes, correct, Your Honor, I'm sorry. So then if that's the case, you present one potential variable. Do you believe that it congresses obligations to consider all variables, or is there kind of a burden shifting going on here that only if something's presented to commerce? In the latter, Your Honor, I mean, in other words, we don't believe that commerce has to go out and look for the reasons, or have an affirmative duty to do that. However, commerce does have an obligation to look at reasons that are documented in the record that would explain the variation in prices and therefore would confirm that there's no targeted dumping. So in most cases, if there's no positive evidence presented by a party with respect to why the pattern exists as it does, then commerce would have the right, we can see, to proceed, to find that there is targeted dumping. But when a party has presented affirmative evidence based on objective criteria, then commerce does have an obligation to examine whether that could still be considered targeted dumping. Like, the statute itself simply speaks in terms of a price differential, correct? Yes, it does, Your Honor
. So do we have an ambiguity that kicks us back to Chevron? Well, Your Honor, I believe that under TimeX, your TimeX decision that in essence what you said was that not only do we look at the language of the statute, and this is particularly true at the SAA because Congress voted on it and adopted it as a, you know, accepted the definitions therein as a definitive interpretation of what it meant by the law. So I think you have to read those together under any standard Chevron one or Chevron two. Okay. I think that part of the issue here really goes down to the point that commerce and position is basically that targeted dumping and targeting has nothing to do with this provision. In fact, before the lower court commerce, I mean the government would specifically ask whether they believe that significant price differences equal targeted dumping. And they specifically said nothing. They said that targeting dumping has nothing to do with this exceptional provision. And we find that to be a rather remarkable statement given the fact that the SAA itself says that targeted dumping, that this is an exception for targeted dumping. And I can give you that size, but it's a definitive. So we believe that the fundamental problem here in addition to the problem we've discussed is that when commerce gets to step two, they're rational for why they find that the differences are significant. It's simply that it results in a different result. I mean in other words, the dumping margin is different under a methodology that compares average to average versus average to transactions. What I submit is that that difference has nothing to do with price changes. In other words, when you do the dumping calculation on any dumping database and you use those two methodologies, they're going to yield different results. One, because of what the court says and observed in the Beijing Tyzen case, which is that averageing versus transaction to transaction mathematically leads to a different result. But there's an additional reason, which is that commerce, when they use average to average, they don't zero. They don't take into account negative, they take into account negative margin. When they use the average transaction methodology, they do not consider negative margin. As a consequence, you almost always get a difference in result
. So we don't understand why that test can satisfy Congress's specific requirement that the commerce department establish and explain why the normal methodology cannot take into account this pattern of price differences that they're observing. We believe that under commerce is methodology of using a TT, what they have done is to improperly inflate the margin. They've amplified the margin. In other words, it's the trueism that if you do it under one methodology, you get one result, another methodology, and you get another result. But the question is which one is accurate. And I'd refer the court to the restaurant decision in board, where she refers to several reports, one by the Congressional Budget Office, which concluded that transaction-specific price comparisons are statistically biased towards finding a dumping margin. And that when, in fact, the actual margin is small and you apply the average transaction methodology, what you're doing is creating a bias in favor of margins and you're amplifying the margin themselves. So where are you getting this in the statute itself? The requirement that Congress has an obligation to discern the reasons for the price differential. In the essay, okay, so you're saying that the essay actually requires this? Yes, Your Honor, there's, in fact, there's a two-part test in the essay. And in fact, it admits as much. The Congress does not dispute this point. It says on page, I think it's 80-percent of your Honor, it says, New Section 77 AED1B provides for comparison of average normal values. The situations were an average to average or transaction to transaction methodology cannot account for a pattern of prices that differ significantly. IE, where targeted dumping may be occurring. Before relying on this methodology, however, Congress must establish and provide an explanation why it cannot account for such differences through the use of an average to average transaction methodology. But it doesn't say that, well, first of all, I talked about it does refer to the fact that targeted dumping may be occurring. So they don't have to make a formal determination that it is occurring. And when you say that, with that, Congress has an obligation to provide an explanation, their explanation is simply to say why the use of an average to average or transaction comparison doesn't account for it. I don't see that saying that they have to consider all possible variables that would account for the price differential
. Well, I think if you read Redding Context Your Honor, I suggest that the IE, where targeted dumping may be occurring, is suggesting that if you observe this pattern of significant price differences, it may be the situation that targeted dumping is occurring. So what we're saying is that finding this pattern is simply a precondition to then look at whether targeted dumping may be occurring. And that subsequent test, this sort of additional requirement Congress has imposed due to the exceptional methodology restrictions, basically is saying that yes, you have to determine whether it's necessary. Because if you don't determine whether it's necessary, the question could be that you're simply amplifying the margin. I mean, if they're not engaging in targeted dumping, there's nothing to unmask. There's nothing to determine there. You're arguing it's a little bit circular though, because in order to get to this, the legislative history that Congress was supposedly implementing, or the discussion of what they were supposedly implementing, we have to find that the statute is ambiguous. If we find that the statute is ambiguous, then we're kicked right back to Chevron, are we not? No, Your Honor, I believe that the SAA is part and time acts, and the Court said that even under Chevron 1, you do not look solely to the words of the statute, but you also consider the legislative history. And what we're suggesting is that, and under the presence of this Court, it has always read the SAA in conjunction with the law in determining whether or not something is playing from the words of the statute, that the Court doesn't just say, oh, it's nothing in the statute, we draw our hands, we don't look at any legislative history, even under Chevron 1, we also look at the legislative history. And the SAA is a very special kind of legislative history because of Congress's statement in the context of approving it, to be the definitive statement of their interpretation of the law. Yes, Cameron, is that part of your argument or the rebuttal? Oh, okay, I can sit back and do a little here from the government. Mr. Curvent. Thank you, Your Honor. Good morning, Your Honor's and may I please the Court. The concept of dumping can also practice whereby a company sells goods in the U.S. at a lower price than fair value in its home market. We understand the concept, but how about this particular case? Well, the crux of this case is that the concept of target is dumping is just doing the same thing to a particular purchaser region or time period
. And the issue here is that Orosan's case is built on an incorrect presumption that that concept of target is dumping also entails an intentionality component that it has to be purposeful behavior to a customer region or time period. Despite their protests of the contract. And I have a couple of records citations that demonstrate this from the very beginning of this proceeding. And I'm particularly looking at page J.A. 2856 of the record and 3148 of the record, which are Orosan's initial responses to the allegations of target dumping, where Orosan said, by definition, the concept of targeting indicates an affirmative or conscious effort. I mean, at least in their brief, they sort of backed off of this intentionality concept. And their argument is that if there's a rational business purpose behind the price differential, then it's not dumping. I understand that, Your Honor, although I would disagree slightly. I think what Orosan has done is effectively used the word targeting synonymously for the idea of purpose or intentionality. So they say, as long as you define targeting as purposeful behavior, and remember, it's not just called target-ed-nothing. In this court, a union steal at note 3 referred to the concept of target-ed or mass-dumping. And I don't want to belabor the quote. But what's your response to the notion that all they're doing is saying that target-ed-dumping really means an unexplained price differential? And in this case, it's explained by business purposes. Right. Well, I think I have a legal response and a factual response. The legal response is when you look right at the FAA, I mean, the first paragraph. And I'm looking at the copy of the FAA that's actually attached to a Helen's reply brief. You know, the FAA speaks to target-ed-dumping
. This is the PGA 42, and the paragraph has targeted dumping in quotes. And it says, in such situations, the exporter may sell at a dump price, particular customers or regions, while selling at a higher price to other customers in the region. So again, the whole concept is nearly defined by a pattern of price differences, where there's a significant difference to particular customer regions or time periods. And that's plainly what's in the statute. So this notion that there may be legitimate commercial reasons or other reasons why there was a pattern of price differences to a particular customer region time period, that also results in a meaningful difference between the A to A and the A to T methodology, isn't part of the statute, and it isn't part of the FAA either. To clarify, one point that's been slightly confusing, when the statute refers to the fact that targeted dumping may be occurring, what is referring to as the fact that the tests that is laid out in the statute are simply the prerequisites for commerce applying the A to T methodology. And it's the A to T methodology that then allows one to determine whether there is targeting or massed dumping occurring. So the paragraph down, as a where the section is that your front on the other side cited, there's a reference to the commerce having to explain why the average to average or transactions transaction comparison can't account for the difference. I mean, what do they explain? I mean, you're just saying it doesn't show it, it doesn't as a matter of mass show it, but that doesn't mean what does it count me? Right, well, there are I think a couple different ways. First of all, when it says commerce, we'll look at this on a case by case basis. What it's talking about is the fact that here one had a 3% difference between A to A and A to T methodology and across what the courts have called the Diminimus threshold, where on the one hand with the A to A methodology, you're not identifying dumping and with the A to T because, and this is the factual component of my point earlier, because it turns out at the end of the day, the vast majority of these sales in February 2010 that were identified by the fact that the data was not being done. So, when you apply a commerce target dumping analysis or mass dumping analysis, it turns out these sales that were dumped, that is the vast majority of the sales that were caught by commerce, commerce's statistical methodology, were also sales that were sold in the U.S. That's less than their price in the home market. When you apply that A to T methodology, that masking by the non-dump sales is pulled back and you get a dumping rate. So, commerce in its general practice has said, if it crosses the Diminimus threshold, that is a meaningful difference. But it's on a case by case basis, because as the SA says, there's a difference between going from 0% to 3%, and going from, for example, 150% to 153%, that wouldn't be a meaningful difference. And commerce, I mean, all of this, there's a lot of math and all of this. So, what is a meaningful difference? What is the threshold? Well, in this case, it's the fact that it crossed the Diminimus threshold. I hope you can never define what that Diminimus threshold is. That's what I'm trying to figure out. Is 0.4% or is it 0.6%? No, you're wondering. That's truly defined as 0.5%. And there's been quite a bit of litigation at the CIT on this issue. I think initially was a little, when commerce is always leery about using numbers in its issues and decision memorandum, because you have BPI issues and things of that nature. But on page 3736 of the record, you have the final results of commerce's analysis and is saying, look, here's 0, and here's 3.55%. And we've had some plaintiffs argue that, well, what if it was 0.4% and it went to 0.6% and the CIT is ruled. That's not the case in front, but clearly it's going from 0% to 3.5%. That's a meaningful difference because the A to A methodology isn't revealing anything. And the A to D is. But it's important here to note that it really is something going on
. I hope you can never define what that Diminimus threshold is. That's what I'm trying to figure out. Is 0.4% or is it 0.6%? No, you're wondering. That's truly defined as 0.5%. And there's been quite a bit of litigation at the CIT on this issue. I think initially was a little, when commerce is always leery about using numbers in its issues and decision memorandum, because you have BPI issues and things of that nature. But on page 3736 of the record, you have the final results of commerce's analysis and is saying, look, here's 0, and here's 3.55%. And we've had some plaintiffs argue that, well, what if it was 0.4% and it went to 0.6% and the CIT is ruled. That's not the case in front, but clearly it's going from 0% to 3.5%. That's a meaningful difference because the A to A methodology isn't revealing anything. And the A to D is. But it's important here to note that it really is something going on. This is a page, I'm sorry, 37.24% of the record and 36.60% of the record, where it's in black and white, the portion of the overall year sales that were in February 2010 were significant portion of sales. And at 37.24, it indicates the number of those targets, the percentage of those targeted sales that turned out to be sold at less than fair value. And the overwhelming majority of those sales were sales that were dumped. So commerce isn't simply applying a mechanical, statistical test. It's identifying a pattern of price differences. So by not providing any guidance on what constitutes the meaningful difference. In case by case basis, you're just saying we know it when we see it. When we get the numbers, we'll tell you if you fail. Well, I'm not sure you're on it. Actually, as commerce practices develop, for example, today commerce has indicated that meaningful difference would be crossing the amendments such as thresholds, which has happened in a number of cases. And that's what happened here. Commerce is also indicated as it's moved to a differential pricing model that a difference of greater than 25% would, if you're not crossing the amendments threshold, would constitute a meaningful difference. But we don't have that here because it's about the minimum threshold. I also, it's important to note that it's certainly not a tourism that you always get a different result between the A to A methodology and the A to T methodology. In particular, we cited two instances where commerce found a pattern of price differences that satisfied the first problem of the statute, the task, the nails test. But then when commerce went to look at whether there was a meaningful difference between the A to A methodology and the A to T methodology, it determined there was not one being essentially you got very similar results with the two
. This is a page, I'm sorry, 37.24% of the record and 36.60% of the record, where it's in black and white, the portion of the overall year sales that were in February 2010 were significant portion of sales. And at 37.24, it indicates the number of those targets, the percentage of those targeted sales that turned out to be sold at less than fair value. And the overwhelming majority of those sales were sales that were dumped. So commerce isn't simply applying a mechanical, statistical test. It's identifying a pattern of price differences. So by not providing any guidance on what constitutes the meaningful difference. In case by case basis, you're just saying we know it when we see it. When we get the numbers, we'll tell you if you fail. Well, I'm not sure you're on it. Actually, as commerce practices develop, for example, today commerce has indicated that meaningful difference would be crossing the amendments such as thresholds, which has happened in a number of cases. And that's what happened here. Commerce is also indicated as it's moved to a differential pricing model that a difference of greater than 25% would, if you're not crossing the amendments threshold, would constitute a meaningful difference. But we don't have that here because it's about the minimum threshold. I also, it's important to note that it's certainly not a tourism that you always get a different result between the A to A methodology and the A to T methodology. In particular, we cited two instances where commerce found a pattern of price differences that satisfied the first problem of the statute, the task, the nails test. But then when commerce went to look at whether there was a meaningful difference between the A to A methodology and the A to T methodology, it determined there was not one being essentially you got very similar results with the two. Because unlike this case, you didn't have targeted dumping going on where the sales, the paths and nails test resulted in a margin from unmasking by not averaging other sales. We cited those cases of page 40 of our brief. Those were the polyethylene film from China cases, which is 78 FedRag 35247 at issue eight. And also the carbon and alloy steel wire from Mexico case, which is 78 FedRag 28198 comments three and four. And I'm sorry, the first one is issue eight, no one away. And those were both cases where you had companies that passed the nails test and there was a pattern of price differences. But ultimately because there was no meaningful difference between the A to A and A to T methodologies, commerce determined that it was not appropriate to go on and apply the A to T methodology as the official methodology for the review. And therefore, seek to unmask targeted dumping. But the reason that the statute says, the SAs has made, because until you actually go and apply it and granted commerce methodology cuts to the chase a little bit by using it as the meaningful difference test as well, you really have an identified target of dumping here just looking at the pattern of US prices. A couple of very quick points. And we have made a Chevron one argument. And the issue there is this portrait follow what it did in the Ponce deal where a party made a very similar argument about intentionality. And of course, the statute clearly does not say that commerce could certainly choose to look at those issues, but it's certainly not required. And so under Chevron step one, the sketch doesn't require it. The other thing is only issue about whether this is fair or whether it is pleased to an observed result on their Chevron step two. It's clearly not the case for several reasons. First, because the FAA, the statute authorizes this methodology and the FAA assume that this will be the normal methodology in reviews. Because at the time this was the normal methodology, the A to T methodology in reviews. Second, it's fair because it turned out at the end of the day, even if the pattern had something to do with cost differentials of Borosan's raw material cost, the vast majority of the sales in this targeted time period were dumped
. Because unlike this case, you didn't have targeted dumping going on where the sales, the paths and nails test resulted in a margin from unmasking by not averaging other sales. We cited those cases of page 40 of our brief. Those were the polyethylene film from China cases, which is 78 FedRag 35247 at issue eight. And also the carbon and alloy steel wire from Mexico case, which is 78 FedRag 28198 comments three and four. And I'm sorry, the first one is issue eight, no one away. And those were both cases where you had companies that passed the nails test and there was a pattern of price differences. But ultimately because there was no meaningful difference between the A to A and A to T methodologies, commerce determined that it was not appropriate to go on and apply the A to T methodology as the official methodology for the review. And therefore, seek to unmask targeted dumping. But the reason that the statute says, the SAs has made, because until you actually go and apply it and granted commerce methodology cuts to the chase a little bit by using it as the meaningful difference test as well, you really have an identified target of dumping here just looking at the pattern of US prices. A couple of very quick points. And we have made a Chevron one argument. And the issue there is this portrait follow what it did in the Ponce deal where a party made a very similar argument about intentionality. And of course, the statute clearly does not say that commerce could certainly choose to look at those issues, but it's certainly not required. And so under Chevron step one, the sketch doesn't require it. The other thing is only issue about whether this is fair or whether it is pleased to an observed result on their Chevron step two. It's clearly not the case for several reasons. First, because the FAA, the statute authorizes this methodology and the FAA assume that this will be the normal methodology in reviews. Because at the time this was the normal methodology, the A to T methodology in reviews. Second, it's fair because it turned out at the end of the day, even if the pattern had something to do with cost differentials of Borosan's raw material cost, the vast majority of the sales in this targeted time period were dumped. They were sold at less than fair value in the United States. And finally, it's fair because this is consistent with the overall concepts of dumping. The domestic industry is no less entitled to a remedy for dumping because there are good commercial revents for a party doing it. Dumping in general is not about intentionality. It's about pricing discrimination that affects the domestic industry. And that's no less true with targeted dumping than regular generic dumping. We ask for support to sustain the judgment of the court. Okay. Thank you. You're filming? Are you going to tell us how to find a meaningful difference? Yes, you're all be delighted to. What you have before you, I think, is the classic case that fits what the statute is designed to do. What happened in this case is that Borosan concentrated a significant portion of its sales in the single month of February. And the overwhelming majority of those sales were made at dumped prices. So now what Borosan wants you to do is to force the Commerce Department to average those heavily concentrated dumped sales over the sales in all of the rest of the period of the investigation in order to wash out or mask the meaningful difference that you are exactly asking about judge Newman. That's what they want to do. They want to allow those other sales later on to cover up the fact that they engaged in this significant amount of dumping concentrated in the month of February. And what the statute is clearly saying and the statute was set up to address exactly this situation is all that Commerce is required to do is to find is there a pattern of significant differences between the prices, the export prices. In the month of February versus the rest of the month, that's exactly what they did. Are those price differences significant? Yes
. They were sold at less than fair value in the United States. And finally, it's fair because this is consistent with the overall concepts of dumping. The domestic industry is no less entitled to a remedy for dumping because there are good commercial revents for a party doing it. Dumping in general is not about intentionality. It's about pricing discrimination that affects the domestic industry. And that's no less true with targeted dumping than regular generic dumping. We ask for support to sustain the judgment of the court. Okay. Thank you. You're filming? Are you going to tell us how to find a meaningful difference? Yes, you're all be delighted to. What you have before you, I think, is the classic case that fits what the statute is designed to do. What happened in this case is that Borosan concentrated a significant portion of its sales in the single month of February. And the overwhelming majority of those sales were made at dumped prices. So now what Borosan wants you to do is to force the Commerce Department to average those heavily concentrated dumped sales over the sales in all of the rest of the period of the investigation in order to wash out or mask the meaningful difference that you are exactly asking about judge Newman. That's what they want to do. They want to allow those other sales later on to cover up the fact that they engaged in this significant amount of dumping concentrated in the month of February. And what the statute is clearly saying and the statute was set up to address exactly this situation is all that Commerce is required to do is to find is there a pattern of significant differences between the prices, the export prices. In the month of February versus the rest of the month, that's exactly what they did. Are those price differences significant? Yes. Then what Commerce does is analyze what would be the dumping margin if you do it on this weighted transaction basis so that you can account for it. It's concentration of highly dumped imports versus what would be the margin if you average it out over all of the others and balance those concentrated dump sales with something later on in the period that might be a higher price. That's exactly what Commerce did. But the argument is that there's nothing going on other than math. In other words, you're saying as long as there's some price differential at some period of time, then we can immediately bounce out of the average average or transaction transaction methodology. And there are going to be at least is, okay, let's start with a math and see if there's price differential, but then let's see if that price differential actually does reflect dumping rather than jumping to the end conclusion that it's necessarily dumping. What I think requires is, again, before you can even go down this road, you have to identify is there a pattern? Yes or no? That's a straightforward question. It doesn't require intent or anything as they would suggest. Straight forward is there a pattern? Yes or no? Then is that pattern significant? So again, Commerce then engages in an analysis about whether those differences in price are significant on both of those again here unequivocally the answer was yes. And Borsen is really not contesting that basic part of the test. Then you get to be doesn't make any difference. Whether you apply from averaging methodology or whether you apply a weighted to transaction. But so there is no step to say what a count for the price difference. That's that's my question. In other words, if there is no reply, it's in my other question. Yes, but it's all just math. Well, there is no requirement in the statute to show why are there price differences? There's no intent. You don't have the heart of a question. If you do not, the statute does not require any showing of an intention to target or of an intention
. Then what Commerce does is analyze what would be the dumping margin if you do it on this weighted transaction basis so that you can account for it. It's concentration of highly dumped imports versus what would be the margin if you average it out over all of the others and balance those concentrated dump sales with something later on in the period that might be a higher price. That's exactly what Commerce did. But the argument is that there's nothing going on other than math. In other words, you're saying as long as there's some price differential at some period of time, then we can immediately bounce out of the average average or transaction transaction methodology. And there are going to be at least is, okay, let's start with a math and see if there's price differential, but then let's see if that price differential actually does reflect dumping rather than jumping to the end conclusion that it's necessarily dumping. What I think requires is, again, before you can even go down this road, you have to identify is there a pattern? Yes or no? That's a straightforward question. It doesn't require intent or anything as they would suggest. Straight forward is there a pattern? Yes or no? Then is that pattern significant? So again, Commerce then engages in an analysis about whether those differences in price are significant on both of those again here unequivocally the answer was yes. And Borsen is really not contesting that basic part of the test. Then you get to be doesn't make any difference. Whether you apply from averaging methodology or whether you apply a weighted to transaction. But so there is no step to say what a count for the price difference. That's that's my question. In other words, if there is no reply, it's in my other question. Yes, but it's all just math. Well, there is no requirement in the statute to show why are there price differences? There's no intent. You don't have the heart of a question. If you do not, the statute does not require any showing of an intention to target or of an intention. Again, what happened here was the dumping was already occurring. So whether or not it prices changed as a result of changes in cost doesn't change the fact that they were dumping. So they started out with export prices below whole market prices. If then costs come along and increase you increase both of the prices that does not change the fact that they are dumping. And the fact that prices may or may not, I mean costs may or may not have increased does not excuse Borsen's obligation not to dump. So whether or not the prices change for any reason doesn't change the fact that they are not permitted to dump. They are under a dumping order and they're not allowed to continue to dumping to dump. And they're not allowed under the statute to allow the averaging to hide the dumping that is occurring that did occur in the month of February. Okay. Thank you, Ms. Schumann. Thank you. Mr. Cameron. Thank you very much. Appreciate the other time. The government refers to meaningful difference. There's a lot of discussion here about law. It's over-demonimous
. Again, what happened here was the dumping was already occurring. So whether or not it prices changed as a result of changes in cost doesn't change the fact that they were dumping. So they started out with export prices below whole market prices. If then costs come along and increase you increase both of the prices that does not change the fact that they are dumping. And the fact that prices may or may not, I mean costs may or may not have increased does not excuse Borsen's obligation not to dump. So whether or not the prices change for any reason doesn't change the fact that they are not permitted to dump. They are under a dumping order and they're not allowed to continue to dumping to dump. And they're not allowed under the statute to allow the averaging to hide the dumping that is occurring that did occur in the month of February. Okay. Thank you, Ms. Schumann. Thank you. Mr. Cameron. Thank you very much. Appreciate the other time. The government refers to meaningful difference. There's a lot of discussion here about law. It's over-demonimous. There's many different. And therefore we can go to A to T. I would refer you to the statute and to the SAA. The meaningful difference than defines is over-demonimous. You're not going to find that in the statute of the SAA. The statute is not talking about any dividing line there. It says examine and explain. And the one thing that's clear from the statute and the SAA is that you can use A to T, average to transaction only if you determine that there is a pattern of pricing and that it can't be taken in count of in the normal course of business using average to average. So if you can't take that into account if you can't explain it, if examining under A to A, that's fine. But just saying, well, you know, I did it by average to transaction and it resulted in over-demonimous. And therefore, because I had a pattern, automatically, that puts me in... I've given myself these shoes, by the way, to get the average to transaction, which is where I started. This is very circular. And it puts these guys have said in their brief constantly that we've put the card before the horse because we've said you actually have to find target in dumping before you use A to T transaction. And the answer is, it's absolutely right. Well, the statute does, I mean, I know I gave you the other side a hard time about math, but I'm giving you.
. There's many different. And therefore we can go to A to T. I would refer you to the statute and to the SAA. The meaningful difference than defines is over-demonimous. You're not going to find that in the statute of the SAA. The statute is not talking about any dividing line there. It says examine and explain. And the one thing that's clear from the statute and the SAA is that you can use A to T, average to transaction only if you determine that there is a pattern of pricing and that it can't be taken in count of in the normal course of business using average to average. So if you can't take that into account if you can't explain it, if examining under A to A, that's fine. But just saying, well, you know, I did it by average to transaction and it resulted in over-demonimous. And therefore, because I had a pattern, automatically, that puts me in... I've given myself these shoes, by the way, to get the average to transaction, which is where I started. This is very circular. And it puts these guys have said in their brief constantly that we've put the card before the horse because we've said you actually have to find target in dumping before you use A to T transaction. And the answer is, it's absolutely right. Well, the statute does, I mean, I know I gave you the other side a hard time about math, but I'm giving you... Yeah, fine. ...two of the minutes of the statute. ...contemplates that there needs to be some mechanism to make this determination. And average to average doesn't account for a concentrated period of time. Well, but it's fair enough. But this is where I think it is useful to look at what Judge Restan was discussing in boredom. I understand it's not precedent, but it's interesting. Because she's discussing the tension that existed in developing this statute. The tension between the amplification of margins through using average to transaction with zero mean or masking dumping. And what she said is, you know, in the end, they came out in favor of reducing the amplification of dumping. That's the reason this is the exception and not the rule. So, yes, there has to be a test, but that's what the examination is
.. Yeah, fine. ...two of the minutes of the statute. ...contemplates that there needs to be some mechanism to make this determination. And average to average doesn't account for a concentrated period of time. Well, but it's fair enough. But this is where I think it is useful to look at what Judge Restan was discussing in boredom. I understand it's not precedent, but it's interesting. Because she's discussing the tension that existed in developing this statute. The tension between the amplification of margins through using average to transaction with zero mean or masking dumping. And what she said is, you know, in the end, they came out in favor of reducing the amplification of dumping. That's the reason this is the exception and not the rule. So, yes, there has to be a test, but that's what the examination is. I would suggest to you that what we're suggesting is not revolutionary. If you look at Borden, if you look at that, Kelso-Oi, and if you look at the basing cases that my colleague referred to, they all refer to the fact that, well, there can be other explanations for significant price differences. And what are they? And there may be significant price differences that are not targeted dumping. And if those significant price differences aren't targeted dumping, then they're not supposed to be using this exception. So, that is our position, Your Honor, that this is an exception to the rule. And that's the reason that it says, examine and explain. And when you have those cost differences and you can explain it, then that has to be taken to a count, and they can't just say, I'm not going to look at it. Thank you very much. We appreciate your time. Thank you, Mr. Cameron. Thank you all. The case is taken under submission.
Why are we sitting there? Our next exercise is mostly journal. Please sit here. We'll sit here for a while. Turn around. The individual is now around the floor. You sit here. You're not the most important person. Please sit here. So, you can sit here. Can't sit here. That's up and down. Please turn around for a minute. Thanks. Thank you. You're welcome. Thank you. You're welcome. Thank you. Good. Good. Thank you. Thank you. Thank you. Good. Good. Thank you. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. Good. s herum let's go. All right. Thank you. The United States, board of bills, is federal park. Now, driven and incessant, not paid the United States, is the monogamous bill. Thank you. You're welcome to see this. Any good morning, everyone. For a circuit case this morning is number 14, 17, 44. Where are Santa Madison and where are we? Again, the United States. This is Vindosa. Good morning. May I please the court? My name is Julie Mendosa, and I'm appearing on behalf of the Plains of Helen Ford on Monmouth Month. I plan to use 12 minutes of my time for my affirmative presentation and reserve three minutes for rebuttal by my partner, Donna Pamela. In this case, the Congress Department unlocksly applies targeted dumping methodology to Boris Don in the 2010-2011 review. Despite uncontested record evidence, the Boris Don increased its US crisis after February to account for the increase in cost of raw materials. As record evidence confirms raw materials constituted a very high percentage of the total cost of the product under consideration, and therefore it was economically sensible for Boris Don to increase its prices. Or use the US financial development shipment by shipments. No, I believe your honor that the Congress Department should have used the average to average methodology in comparing their prices and not resorted to the target dumping provision as an exception because I believe that they could not meet the requirements of the targeted dumping provision. Well, is that really what you argued? Is it that they should use average to average or are you saying that in using the methodology they use, they still have an additional step that they have to undergo? No, your honor, actually, our argument is that under, commerce proceeded under 19 CFR 351.414C1, which provides that in both investigations and reviews, the Commerce Department will use average to average methodology. In our case, they also said that in the event that they find that there is targeted dumping, they would resort to the A to team methodology. And therefore, commerce's decision to resort to the A to team methodology depends on whether or not they were lawfully applied their targeted dumping provision. Otherwise, they had to use the ADA methodology, which we believe is accurate. Our margin was zero with ADA. So you're saying they can't get to a targeted dumping determination though until they consider the raw material price increases? No, I think what I'm trying to say, Your Honor, is that once they start with the premise that they should use the average methodology, commerce then said, only in the event that we find that the requirements of 1677F1D1BID, the ID of the targeted dumping provision, only if those requirements are met, will we then use the A to team methodology? And your view is 1677F1D requires reasons. No, Your Honor, not actually reasons. I believe what our position is, is that in this case, because we presented unconverted and unconverteable evidence, and which commerce did not dispute, that in fact the price increase was fully explained by the changes in the cost, as a consequence, that evidence went directly to the question of whether there was targeted dumping. Well, the statute speaks in terms of reasons why one and two may not explain the price difference. I'm just saying that given the cost of the product, that's why one and two, Connics pointed. Well, yes, in part. I mean, what we're saying is that with respect to the requirements that commerce find a pattern of price differences, the first test, we believe, and it goes on to say, in the FAA, ID targeted dumping may be occurring. We believe that because we presented evidence that in fact targeted dumping was not occurring. In fact, this was simply a matter of pricing in order to take into account increasing raw material prices into avoid dumping, that that requirement was not met. Moreover, commerce's test, that is, can the normal methodology ID average average take into account this pattern, we believe the answer to that question should have been yes, because it did not constitute targeted dumping, and therefore commerce had no basis for resorting to an exceptional methodology. So you want to insert essentially requirements that the pattern of price difference will be unexplained by other variables? No, Your Honor, I think what we're saying is that Congress didn't just say that there had to be significant price differences in the FAA, they said, ID targeted dumping may be occurring. And therefore, we believe that commerce must look at the question of whether targeted dumping is occurring. The problem is that if they move, when they move to step two, and they say, can the normal methodology take into account the targeted dumping, or take into account this pattern of prices that we see, commerce simply doesn't even look at whether they're targeted dumping. In fact, they say all this provision has nothing to do with targeted dumping, and they say, we're just going to look and see what the resolve is. So I think your answer to my question actually was yes, that the price differentials have to be unexplained by something other than targeted dumping. Yes, correct, Your Honor, I'm sorry. So then if that's the case, you present one potential variable. Do you believe that it congresses obligations to consider all variables, or is there kind of a burden shifting going on here that only if something's presented to commerce? In the latter, Your Honor, I mean, in other words, we don't believe that commerce has to go out and look for the reasons, or have an affirmative duty to do that. However, commerce does have an obligation to look at reasons that are documented in the record that would explain the variation in prices and therefore would confirm that there's no targeted dumping. So in most cases, if there's no positive evidence presented by a party with respect to why the pattern exists as it does, then commerce would have the right, we can see, to proceed, to find that there is targeted dumping. But when a party has presented affirmative evidence based on objective criteria, then commerce does have an obligation to examine whether that could still be considered targeted dumping. Like, the statute itself simply speaks in terms of a price differential, correct? Yes, it does, Your Honor. So do we have an ambiguity that kicks us back to Chevron? Well, Your Honor, I believe that under TimeX, your TimeX decision that in essence what you said was that not only do we look at the language of the statute, and this is particularly true at the SAA because Congress voted on it and adopted it as a, you know, accepted the definitions therein as a definitive interpretation of what it meant by the law. So I think you have to read those together under any standard Chevron one or Chevron two. Okay. I think that part of the issue here really goes down to the point that commerce and position is basically that targeted dumping and targeting has nothing to do with this provision. In fact, before the lower court commerce, I mean the government would specifically ask whether they believe that significant price differences equal targeted dumping. And they specifically said nothing. They said that targeting dumping has nothing to do with this exceptional provision. And we find that to be a rather remarkable statement given the fact that the SAA itself says that targeted dumping, that this is an exception for targeted dumping. And I can give you that size, but it's a definitive. So we believe that the fundamental problem here in addition to the problem we've discussed is that when commerce gets to step two, they're rational for why they find that the differences are significant. It's simply that it results in a different result. I mean in other words, the dumping margin is different under a methodology that compares average to average versus average to transactions. What I submit is that that difference has nothing to do with price changes. In other words, when you do the dumping calculation on any dumping database and you use those two methodologies, they're going to yield different results. One, because of what the court says and observed in the Beijing Tyzen case, which is that averageing versus transaction to transaction mathematically leads to a different result. But there's an additional reason, which is that commerce, when they use average to average, they don't zero. They don't take into account negative, they take into account negative margin. When they use the average transaction methodology, they do not consider negative margin. As a consequence, you almost always get a difference in result. So we don't understand why that test can satisfy Congress's specific requirement that the commerce department establish and explain why the normal methodology cannot take into account this pattern of price differences that they're observing. We believe that under commerce is methodology of using a TT, what they have done is to improperly inflate the margin. They've amplified the margin. In other words, it's the trueism that if you do it under one methodology, you get one result, another methodology, and you get another result. But the question is which one is accurate. And I'd refer the court to the restaurant decision in board, where she refers to several reports, one by the Congressional Budget Office, which concluded that transaction-specific price comparisons are statistically biased towards finding a dumping margin. And that when, in fact, the actual margin is small and you apply the average transaction methodology, what you're doing is creating a bias in favor of margins and you're amplifying the margin themselves. So where are you getting this in the statute itself? The requirement that Congress has an obligation to discern the reasons for the price differential. In the essay, okay, so you're saying that the essay actually requires this? Yes, Your Honor, there's, in fact, there's a two-part test in the essay. And in fact, it admits as much. The Congress does not dispute this point. It says on page, I think it's 80-percent of your Honor, it says, New Section 77 AED1B provides for comparison of average normal values. The situations were an average to average or transaction to transaction methodology cannot account for a pattern of prices that differ significantly. IE, where targeted dumping may be occurring. Before relying on this methodology, however, Congress must establish and provide an explanation why it cannot account for such differences through the use of an average to average transaction methodology. But it doesn't say that, well, first of all, I talked about it does refer to the fact that targeted dumping may be occurring. So they don't have to make a formal determination that it is occurring. And when you say that, with that, Congress has an obligation to provide an explanation, their explanation is simply to say why the use of an average to average or transaction comparison doesn't account for it. I don't see that saying that they have to consider all possible variables that would account for the price differential. Well, I think if you read Redding Context Your Honor, I suggest that the IE, where targeted dumping may be occurring, is suggesting that if you observe this pattern of significant price differences, it may be the situation that targeted dumping is occurring. So what we're saying is that finding this pattern is simply a precondition to then look at whether targeted dumping may be occurring. And that subsequent test, this sort of additional requirement Congress has imposed due to the exceptional methodology restrictions, basically is saying that yes, you have to determine whether it's necessary. Because if you don't determine whether it's necessary, the question could be that you're simply amplifying the margin. I mean, if they're not engaging in targeted dumping, there's nothing to unmask. There's nothing to determine there. You're arguing it's a little bit circular though, because in order to get to this, the legislative history that Congress was supposedly implementing, or the discussion of what they were supposedly implementing, we have to find that the statute is ambiguous. If we find that the statute is ambiguous, then we're kicked right back to Chevron, are we not? No, Your Honor, I believe that the SAA is part and time acts, and the Court said that even under Chevron 1, you do not look solely to the words of the statute, but you also consider the legislative history. And what we're suggesting is that, and under the presence of this Court, it has always read the SAA in conjunction with the law in determining whether or not something is playing from the words of the statute, that the Court doesn't just say, oh, it's nothing in the statute, we draw our hands, we don't look at any legislative history, even under Chevron 1, we also look at the legislative history. And the SAA is a very special kind of legislative history because of Congress's statement in the context of approving it, to be the definitive statement of their interpretation of the law. Yes, Cameron, is that part of your argument or the rebuttal? Oh, okay, I can sit back and do a little here from the government. Mr. Curvent. Thank you, Your Honor. Good morning, Your Honor's and may I please the Court. The concept of dumping can also practice whereby a company sells goods in the U.S. at a lower price than fair value in its home market. We understand the concept, but how about this particular case? Well, the crux of this case is that the concept of target is dumping is just doing the same thing to a particular purchaser region or time period. And the issue here is that Orosan's case is built on an incorrect presumption that that concept of target is dumping also entails an intentionality component that it has to be purposeful behavior to a customer region or time period. Despite their protests of the contract. And I have a couple of records citations that demonstrate this from the very beginning of this proceeding. And I'm particularly looking at page J.A. 2856 of the record and 3148 of the record, which are Orosan's initial responses to the allegations of target dumping, where Orosan said, by definition, the concept of targeting indicates an affirmative or conscious effort. I mean, at least in their brief, they sort of backed off of this intentionality concept. And their argument is that if there's a rational business purpose behind the price differential, then it's not dumping. I understand that, Your Honor, although I would disagree slightly. I think what Orosan has done is effectively used the word targeting synonymously for the idea of purpose or intentionality. So they say, as long as you define targeting as purposeful behavior, and remember, it's not just called target-ed-nothing. In this court, a union steal at note 3 referred to the concept of target-ed or mass-dumping. And I don't want to belabor the quote. But what's your response to the notion that all they're doing is saying that target-ed-dumping really means an unexplained price differential? And in this case, it's explained by business purposes. Right. Well, I think I have a legal response and a factual response. The legal response is when you look right at the FAA, I mean, the first paragraph. And I'm looking at the copy of the FAA that's actually attached to a Helen's reply brief. You know, the FAA speaks to target-ed-dumping. This is the PGA 42, and the paragraph has targeted dumping in quotes. And it says, in such situations, the exporter may sell at a dump price, particular customers or regions, while selling at a higher price to other customers in the region. So again, the whole concept is nearly defined by a pattern of price differences, where there's a significant difference to particular customer regions or time periods. And that's plainly what's in the statute. So this notion that there may be legitimate commercial reasons or other reasons why there was a pattern of price differences to a particular customer region time period, that also results in a meaningful difference between the A to A and the A to T methodology, isn't part of the statute, and it isn't part of the FAA either. To clarify, one point that's been slightly confusing, when the statute refers to the fact that targeted dumping may be occurring, what is referring to as the fact that the tests that is laid out in the statute are simply the prerequisites for commerce applying the A to T methodology. And it's the A to T methodology that then allows one to determine whether there is targeting or massed dumping occurring. So the paragraph down, as a where the section is that your front on the other side cited, there's a reference to the commerce having to explain why the average to average or transactions transaction comparison can't account for the difference. I mean, what do they explain? I mean, you're just saying it doesn't show it, it doesn't as a matter of mass show it, but that doesn't mean what does it count me? Right, well, there are I think a couple different ways. First of all, when it says commerce, we'll look at this on a case by case basis. What it's talking about is the fact that here one had a 3% difference between A to A and A to T methodology and across what the courts have called the Diminimus threshold, where on the one hand with the A to A methodology, you're not identifying dumping and with the A to T because, and this is the factual component of my point earlier, because it turns out at the end of the day, the vast majority of these sales in February 2010 that were identified by the fact that the data was not being done. So, when you apply a commerce target dumping analysis or mass dumping analysis, it turns out these sales that were dumped, that is the vast majority of the sales that were caught by commerce, commerce's statistical methodology, were also sales that were sold in the U.S. That's less than their price in the home market. When you apply that A to T methodology, that masking by the non-dump sales is pulled back and you get a dumping rate. So, commerce in its general practice has said, if it crosses the Diminimus threshold, that is a meaningful difference. But it's on a case by case basis, because as the SA says, there's a difference between going from 0% to 3%, and going from, for example, 150% to 153%, that wouldn't be a meaningful difference. And commerce, I mean, all of this, there's a lot of math and all of this. So, what is a meaningful difference? What is the threshold? Well, in this case, it's the fact that it crossed the Diminimus threshold. I hope you can never define what that Diminimus threshold is. That's what I'm trying to figure out. Is 0.4% or is it 0.6%? No, you're wondering. That's truly defined as 0.5%. And there's been quite a bit of litigation at the CIT on this issue. I think initially was a little, when commerce is always leery about using numbers in its issues and decision memorandum, because you have BPI issues and things of that nature. But on page 3736 of the record, you have the final results of commerce's analysis and is saying, look, here's 0, and here's 3.55%. And we've had some plaintiffs argue that, well, what if it was 0.4% and it went to 0.6% and the CIT is ruled. That's not the case in front, but clearly it's going from 0% to 3.5%. That's a meaningful difference because the A to A methodology isn't revealing anything. And the A to D is. But it's important here to note that it really is something going on. This is a page, I'm sorry, 37.24% of the record and 36.60% of the record, where it's in black and white, the portion of the overall year sales that were in February 2010 were significant portion of sales. And at 37.24, it indicates the number of those targets, the percentage of those targeted sales that turned out to be sold at less than fair value. And the overwhelming majority of those sales were sales that were dumped. So commerce isn't simply applying a mechanical, statistical test. It's identifying a pattern of price differences. So by not providing any guidance on what constitutes the meaningful difference. In case by case basis, you're just saying we know it when we see it. When we get the numbers, we'll tell you if you fail. Well, I'm not sure you're on it. Actually, as commerce practices develop, for example, today commerce has indicated that meaningful difference would be crossing the amendments such as thresholds, which has happened in a number of cases. And that's what happened here. Commerce is also indicated as it's moved to a differential pricing model that a difference of greater than 25% would, if you're not crossing the amendments threshold, would constitute a meaningful difference. But we don't have that here because it's about the minimum threshold. I also, it's important to note that it's certainly not a tourism that you always get a different result between the A to A methodology and the A to T methodology. In particular, we cited two instances where commerce found a pattern of price differences that satisfied the first problem of the statute, the task, the nails test. But then when commerce went to look at whether there was a meaningful difference between the A to A methodology and the A to T methodology, it determined there was not one being essentially you got very similar results with the two. Because unlike this case, you didn't have targeted dumping going on where the sales, the paths and nails test resulted in a margin from unmasking by not averaging other sales. We cited those cases of page 40 of our brief. Those were the polyethylene film from China cases, which is 78 FedRag 35247 at issue eight. And also the carbon and alloy steel wire from Mexico case, which is 78 FedRag 28198 comments three and four. And I'm sorry, the first one is issue eight, no one away. And those were both cases where you had companies that passed the nails test and there was a pattern of price differences. But ultimately because there was no meaningful difference between the A to A and A to T methodologies, commerce determined that it was not appropriate to go on and apply the A to T methodology as the official methodology for the review. And therefore, seek to unmask targeted dumping. But the reason that the statute says, the SAs has made, because until you actually go and apply it and granted commerce methodology cuts to the chase a little bit by using it as the meaningful difference test as well, you really have an identified target of dumping here just looking at the pattern of US prices. A couple of very quick points. And we have made a Chevron one argument. And the issue there is this portrait follow what it did in the Ponce deal where a party made a very similar argument about intentionality. And of course, the statute clearly does not say that commerce could certainly choose to look at those issues, but it's certainly not required. And so under Chevron step one, the sketch doesn't require it. The other thing is only issue about whether this is fair or whether it is pleased to an observed result on their Chevron step two. It's clearly not the case for several reasons. First, because the FAA, the statute authorizes this methodology and the FAA assume that this will be the normal methodology in reviews. Because at the time this was the normal methodology, the A to T methodology in reviews. Second, it's fair because it turned out at the end of the day, even if the pattern had something to do with cost differentials of Borosan's raw material cost, the vast majority of the sales in this targeted time period were dumped. They were sold at less than fair value in the United States. And finally, it's fair because this is consistent with the overall concepts of dumping. The domestic industry is no less entitled to a remedy for dumping because there are good commercial revents for a party doing it. Dumping in general is not about intentionality. It's about pricing discrimination that affects the domestic industry. And that's no less true with targeted dumping than regular generic dumping. We ask for support to sustain the judgment of the court. Okay. Thank you. You're filming? Are you going to tell us how to find a meaningful difference? Yes, you're all be delighted to. What you have before you, I think, is the classic case that fits what the statute is designed to do. What happened in this case is that Borosan concentrated a significant portion of its sales in the single month of February. And the overwhelming majority of those sales were made at dumped prices. So now what Borosan wants you to do is to force the Commerce Department to average those heavily concentrated dumped sales over the sales in all of the rest of the period of the investigation in order to wash out or mask the meaningful difference that you are exactly asking about judge Newman. That's what they want to do. They want to allow those other sales later on to cover up the fact that they engaged in this significant amount of dumping concentrated in the month of February. And what the statute is clearly saying and the statute was set up to address exactly this situation is all that Commerce is required to do is to find is there a pattern of significant differences between the prices, the export prices. In the month of February versus the rest of the month, that's exactly what they did. Are those price differences significant? Yes. Then what Commerce does is analyze what would be the dumping margin if you do it on this weighted transaction basis so that you can account for it. It's concentration of highly dumped imports versus what would be the margin if you average it out over all of the others and balance those concentrated dump sales with something later on in the period that might be a higher price. That's exactly what Commerce did. But the argument is that there's nothing going on other than math. In other words, you're saying as long as there's some price differential at some period of time, then we can immediately bounce out of the average average or transaction transaction methodology. And there are going to be at least is, okay, let's start with a math and see if there's price differential, but then let's see if that price differential actually does reflect dumping rather than jumping to the end conclusion that it's necessarily dumping. What I think requires is, again, before you can even go down this road, you have to identify is there a pattern? Yes or no? That's a straightforward question. It doesn't require intent or anything as they would suggest. Straight forward is there a pattern? Yes or no? Then is that pattern significant? So again, Commerce then engages in an analysis about whether those differences in price are significant on both of those again here unequivocally the answer was yes. And Borsen is really not contesting that basic part of the test. Then you get to be doesn't make any difference. Whether you apply from averaging methodology or whether you apply a weighted to transaction. But so there is no step to say what a count for the price difference. That's that's my question. In other words, if there is no reply, it's in my other question. Yes, but it's all just math. Well, there is no requirement in the statute to show why are there price differences? There's no intent. You don't have the heart of a question. If you do not, the statute does not require any showing of an intention to target or of an intention. Again, what happened here was the dumping was already occurring. So whether or not it prices changed as a result of changes in cost doesn't change the fact that they were dumping. So they started out with export prices below whole market prices. If then costs come along and increase you increase both of the prices that does not change the fact that they are dumping. And the fact that prices may or may not, I mean costs may or may not have increased does not excuse Borsen's obligation not to dump. So whether or not the prices change for any reason doesn't change the fact that they are not permitted to dump. They are under a dumping order and they're not allowed to continue to dumping to dump. And they're not allowed under the statute to allow the averaging to hide the dumping that is occurring that did occur in the month of February. Okay. Thank you, Ms. Schumann. Thank you. Mr. Cameron. Thank you very much. Appreciate the other time. The government refers to meaningful difference. There's a lot of discussion here about law. It's over-demonimous. There's many different. And therefore we can go to A to T. I would refer you to the statute and to the SAA. The meaningful difference than defines is over-demonimous. You're not going to find that in the statute of the SAA. The statute is not talking about any dividing line there. It says examine and explain. And the one thing that's clear from the statute and the SAA is that you can use A to T, average to transaction only if you determine that there is a pattern of pricing and that it can't be taken in count of in the normal course of business using average to average. So if you can't take that into account if you can't explain it, if examining under A to A, that's fine. But just saying, well, you know, I did it by average to transaction and it resulted in over-demonimous. And therefore, because I had a pattern, automatically, that puts me in... I've given myself these shoes, by the way, to get the average to transaction, which is where I started. This is very circular. And it puts these guys have said in their brief constantly that we've put the card before the horse because we've said you actually have to find target in dumping before you use A to T transaction. And the answer is, it's absolutely right. Well, the statute does, I mean, I know I gave you the other side a hard time about math, but I'm giving you... Yeah, fine. ...two of the minutes of the statute. ...contemplates that there needs to be some mechanism to make this determination. And average to average doesn't account for a concentrated period of time. Well, but it's fair enough. But this is where I think it is useful to look at what Judge Restan was discussing in boredom. I understand it's not precedent, but it's interesting. Because she's discussing the tension that existed in developing this statute. The tension between the amplification of margins through using average to transaction with zero mean or masking dumping. And what she said is, you know, in the end, they came out in favor of reducing the amplification of dumping. That's the reason this is the exception and not the rule. So, yes, there has to be a test, but that's what the examination is. I would suggest to you that what we're suggesting is not revolutionary. If you look at Borden, if you look at that, Kelso-Oi, and if you look at the basing cases that my colleague referred to, they all refer to the fact that, well, there can be other explanations for significant price differences. And what are they? And there may be significant price differences that are not targeted dumping. And if those significant price differences aren't targeted dumping, then they're not supposed to be using this exception. So, that is our position, Your Honor, that this is an exception to the rule. And that's the reason that it says, examine and explain. And when you have those cost differences and you can explain it, then that has to be taken to a count, and they can't just say, I'm not going to look at it. Thank you very much. We appreciate your time. Thank you, Mr. Cameron. Thank you all. The case is taken under submission