[00:00:00] Speaker 03:
as far as the zeroing issue, and tell us what the differences are between these two administrative reviews.

[00:00:08] Speaker 04:
Yes, Your Honor.

[00:00:09] Speaker 04:
Again, for the record, Robert LaFranco on behalf of Plaintiffs.

[00:00:12] Speaker 04:
This is my rebuttal.

[00:00:14] Speaker 04:
Yes.

[00:00:14] Speaker 04:
Okay.

[00:00:15] Speaker 04:
So, yeah, I'd like to make a couple points in rebuttal.

[00:00:18] Speaker 04:
And I think

[00:00:20] Speaker 04:
to your honor's point about the statute.

[00:00:25] Speaker 04:
And I would like to mention that one of the most interesting things mentioned was a shortcut.

[00:00:30] Speaker 04:
I agree that what they're doing is a shortcut.

[00:00:34] Speaker 04:
And it's not following what the statute says they should do.

[00:00:36] Speaker 04:
It's simply a shortcut.

[00:00:38] Speaker 04:
If you look at the statute, the administering authority must explain why such differences, and that's differences on the pattern of prices in the US, cannot be accounted for.

[00:00:49] Speaker 04:
between the two, between the normal methodology and the alternative methodology.

[00:00:53] Speaker 05:
We're taken into account.

[00:00:55] Speaker 05:
Let's stick with the actual language of the statute.

[00:00:59] Speaker 05:
It's taken into account.

[00:01:00] Speaker 05:
What does it mean taken into account?

[00:01:03] Speaker 04:
For what purpose?

[00:01:05] Speaker 04:
Well, and that's a good point.

[00:01:07] Speaker 04:
But the question is, yes.

[00:01:08] Speaker 04:
I mean, what's the answer to my good point?

[00:01:10] Speaker 04:
Well, our answer is based on what is the purpose of this, which Congress has said is to unmask dumping, what Congress has indicated in the SAA, which is to alleviate concealed dumping, that which is hidden.

[00:01:24] Speaker 04:
And so the question is, can it account for that?

[00:01:27] Speaker 04:
And in the examples I gave you,

[00:01:31] Speaker 04:
Sometimes it can and sometimes it can't.

[00:01:34] Speaker 04:
That's whether it's hidden.

[00:01:35] Speaker 04:
So when you break out the average price to the individual transactions, you can reveal dumping that's hidden.

[00:01:41] Speaker 04:
In that situation, the A to A cannot account for that because it can't see it.

[00:01:46] Speaker 04:
But in other situations, it can account for it as between averages because there's no masking.

[00:01:53] Speaker 04:
There just might be no dumping.

[00:01:55] Speaker 04:
And so by just comparing... How do you know that?

[00:01:59] Speaker 04:
You can only know by breaking all the transactions out in every averaging group.

[00:02:06] Speaker 04:
But what commerce is doing is they are simply taking a shortcut and assuming that no matter where the sale is, whether it's within an average or whether it's in different averaging groups, any negative dumping margin

[00:02:23] Speaker 04:
is masking a positive dumping.

[00:02:26] Speaker 04:
And what we're saying is that's not necessarily true.

[00:02:29] Speaker 04:
You have to actually look at the evidence, you have to look at the record, you have to look at the patterns, and you can't just automatically provide those offsets on one side, which then eliminates all of your positive dumping.

[00:02:43] Speaker 04:
And I take their point that that's the way they normally do the calculation,

[00:02:48] Speaker 04:
But that doesn't mean that they need to do that calculation the same way when they're doing the comparison, because it's a different question.

[00:02:55] Speaker 04:
It becomes self-fulfilling.

[00:02:57] Speaker 04:
And I realize Aztec has listed some cases where the two comparisons do not yield a meaningful difference.

[00:03:06] Speaker 04:
While it looks like a lot of cases on one piece of paper, compared to all the cases that are conducted, it's a minuscule portion.

[00:03:13] Speaker 04:
And yes, there could be some cases where it's not going to make a difference.

[00:03:16] Speaker 04:
If every sale is dumped, which doesn't happen very often, it's not going to make a difference.

[00:03:21] Speaker 04:
But I don't have statistics to back it up.

[00:03:24] Speaker 04:
Most of the time, it's going to make a huge difference because you're just automatically taking a shortcut and assuming that any time there is a non-dumped sale,

[00:03:34] Speaker 04:
which generates a negative dumping margin.

[00:03:37] Speaker 04:
You're just assuming that that is masking dumping in another sale, and we're saying that's just not necessarily true.

[00:03:44] Speaker 04:
It depends on the pattern of prices, and it depends on whether you're talking about masking within an average or outside of the average.

[00:03:51] Speaker 04:
And so just the last point to rebut is the US government makes a point, and Commerce has said this in their decision memos, that they equate

[00:04:04] Speaker 04:
offsets to masking, and they use the terms implicit masking and explicit masking.

[00:04:11] Speaker 04:
What does that mean?

[00:04:12] Speaker 04:
That tracks the example I gave you.

[00:04:14] Speaker 04:
Implicit masking is within the average, and that is when you break the transaction out, you can reveal individual prices.

[00:04:22] Speaker 04:
So like the 10 and the 14, you then unhide the dumping from the average.

[00:04:27] Speaker 04:
We agree that that implicit masking is masking.

[00:04:31] Speaker 04:
That's what, if you look at Union Steel, that's what Union Steel says, mass dumping within an average.

[00:04:37] Speaker 04:
They have never talked, Union Steel has never talked, nor has the Federal Circuit talked about the other type of masking, which is the explicit masking, which is across the averaging groups.

[00:04:50] Speaker 04:
Commerce has taken that position.

[00:04:52] Speaker 04:
So if nothing else, I just want to clarify.

[00:04:55] Speaker 06:
I realize maybe I should have gotten this 30 minutes ago.

[00:04:58] Speaker 06:
Averaging groups is where in the statute?

[00:05:02] Speaker 04:
Averaging groups is in a different part of the statute.

[00:05:06] Speaker 04:
It's in the regulation as well.

[00:05:09] Speaker 04:
Meaning what?

[00:05:10] Speaker 04:
Meaning the shortcut version is you calculate average prices by a specific product, a control number.

[00:05:20] Speaker 04:
So you're only going to compare prices within a specific product that's identical to another product.

[00:05:26] Speaker 04:
So if you had a piece of steel that was eight feet long and one that was two feet long, you wouldn't compare them.

[00:05:31] Speaker 04:
You'd do them separately.

[00:05:33] Speaker 04:
So that's the averaging group.

[00:05:34] Speaker 04:
And then you might have all these different products compared in one case.

[00:05:38] Speaker 04:
So the averaging group tends to be within a specific product.

[00:05:43] Speaker 04:
So then you would have only specific products compared to each other.

[00:05:48] Speaker 04:
But that's the point, though, is that the implicit masking is within an averaging group, right, when you're taking two prices of identical products and averaging them together, right, and then you split them out, you might actually reveal the dumping.

[00:06:04] Speaker 04:
The explicit masking is going across averaging groups.

[00:06:08] Speaker 04:
I'm sorry, and the groups here are different products?

[00:06:10] Speaker 04:
Different products.

[00:06:11] Speaker 04:
In this case, they're all shrimp, but you might have some with a head on, with a head off.

[00:06:16] Speaker 04:
But that's actually an interesting point.

[00:06:18] Speaker 04:
What they're doing, what the Commerce Department is doing, is assuming that negative dumping on the other product across the averaging groups is masking dumping on a different product.

[00:06:31] Speaker 04:
And we're just saying that's not necessarily true.

[00:06:34] Speaker 04:
And even their term, explicit masking, if you think about the difference between implicit and explicit, that gets to the whole point.

[00:06:43] Speaker 04:
The whole point here is masked, concealed, hidden dumping.

[00:06:48] Speaker 04:
Even the term they use, explicit, means it's not hidden.

[00:06:51] Speaker 04:
The A to A method shows that there is a negative dumping.

[00:06:56] Speaker 04:
Commerce has chosen to abandon zeroing under the A to A method.

[00:07:00] Speaker 04:
So that's a policy choice.

[00:07:02] Speaker 04:
So back to the statute, we would argue that A to A accounts for the difference.

[00:07:09] Speaker 04:
It accounts for it.

[00:07:10] Speaker 04:
It shows, other than within an averaging group, we can see that A to A cannot account for it there.

[00:07:15] Speaker 04:
It's hidden, right?

[00:07:17] Speaker 04:
You can't see it.

[00:07:17] Speaker 04:
It's 12 to 12.

[00:07:19] Speaker 06:
Maybe I didn't notice it.

[00:07:21] Speaker 06:
Do you make an argument in your brief about the difference

[00:07:26] Speaker 06:
between averaging of the same product and averaging between different products?

[00:07:33] Speaker 04:
I don't think we make that specific argument.

[00:07:35] Speaker 04:
I'm explaining you here.

[00:07:37] Speaker 04:
We make the argument that legally it's distortive and it's measuring zeroing.

[00:07:45] Speaker 04:
I'm just explaining now how it works.

[00:07:49] Speaker 04:
My closing point on that is the notion of concealed and hidden.

[00:07:55] Speaker 04:
The point we made in the brief is that they are just automatically assuming that every time there is negative dumping, which is no dumping, wherever it is, that it is masking dumping somewhere else.

[00:08:15] Speaker 04:
And we're just saying that's not true.

[00:08:18] Speaker 04:
So this court should decide, should there be a difference between explicit and implicit?

[00:08:23] Speaker 04:
Is that really what the statute was intended for?

[00:08:26] Speaker 04:
We say no.

[00:08:27] Speaker 04:
We say if you look at the whole concept of masking, in fact,

[00:08:31] Speaker 05:
When Congress enacted this provision in 1994... Why is it that the 14 sale in your hypothetical isn't masking?

[00:08:43] Speaker 05:
Well, we would say as a pure... You just said that it wasn't always.

[00:08:48] Speaker 05:
You may assume that in your hypothetical where you had the 12 at home, 14 came.

[00:08:54] Speaker 05:
Why isn't the 14 masking?

[00:08:56] Speaker 04:
Well, we would say it's not masking because it's from a different averaging group.

[00:09:01] Speaker 04:
It has nothing to do with that other group.

[00:09:03] Speaker 05:
The true masking... But it's an event.

[00:09:06] Speaker 05:
It's a data point.

[00:09:07] Speaker 05:
It is a data point.

[00:09:08] Speaker 05:
It's a transactional data point.

[00:09:09] Speaker 04:
It is, and it's obvious.

[00:09:11] Speaker 05:
It's not... It's obviously masking.

[00:09:14] Speaker 05:
I disagree with that.

[00:09:16] Speaker 05:
Masking up the load.

[00:09:17] Speaker 04:
It's offsetting.

[00:09:19] Speaker 04:
There's an offset.

[00:09:21] Speaker 05:
What's the difference between offsetting and masking?

[00:09:23] Speaker 04:
Well, an offset is a

[00:09:26] Speaker 04:
legally sanctioned allowable negative dumping margin.

[00:09:32] Speaker 04:
It's got nothing to do with masking.

[00:09:34] Speaker 05:
And the point I was making originally was that... I was just calling you out because maybe I'm just too dumb to deal with this, but it just seemed to me like the 14 data points that you identified is masking the tent in every case.

[00:09:53] Speaker 04:
Well, it's offsetting.

[00:09:55] Speaker 04:
I guess it's a matter of semantics.

[00:09:56] Speaker 04:
Where do you want to use masking?

[00:09:57] Speaker 05:
Is it just a terminology issue that's different between us?

[00:10:01] Speaker 04:
No.

[00:10:01] Speaker 04:
We would say it doesn't matter where to use.

[00:10:02] Speaker 04:
You want to use mask, you want to use offset.

[00:10:05] Speaker 04:
The question becomes, what are we trying to get at here?

[00:10:09] Speaker 05:
And so masking is... But if your pattern, so-called, come back to the statute, and the pattern shows that 10, 12,

[00:10:19] Speaker 05:
or the 10-14, then why isn't it fair to assume that the 14 is masculine?

[00:10:26] Speaker 05:
Because that, in that situation... Yeah, well, because in that situation... Or suspicious, it raises a suspicion.

[00:10:34] Speaker 04:
Well, there could be a suspicion if they find enough pattern differences, but I think our argument, Your Honor, is that the whole point of the targeted dumping provision was to get to the difference

[00:10:49] Speaker 04:
in A to A and A to T because of the averaging within an averaging group.

[00:10:54] Speaker 04:
And what's most telling about that is at the time that Congress enacted this provision, zeroing was used on both sides.

[00:11:03] Speaker 04:
A to A used zeroing, A to T used zeroing.

[00:11:06] Speaker 04:
So really the only difference, that's what we're advocating as a test.

[00:11:10] Speaker 04:
The only difference between the two was the averaging within that averaging group when you split out.

[00:11:18] Speaker 04:
12 to the 10 and the 14.

[00:11:21] Speaker 04:
That's, if you look at the SAA, that's what it talks about, concealed by averages.

[00:11:25] Speaker 04:
That's what Union Steel says, concealed by averages.

[00:11:28] Speaker 03:
Is that the difference between the seventh and eighth administrative review and the change procedures?

[00:11:33] Speaker 03:
Let's focus on what's different in this appeal.

[00:11:38] Speaker 04:
No, that would be the same basic issue.

[00:11:40] Speaker 04:
And so we did make the same basic zeroing issue in the eighth administrative review, but we made other arguments as well.

[00:11:50] Speaker 04:
And one is, it's related to this, but it's slightly different.

[00:11:55] Speaker 04:
So in the eighth administrative review, we made the same zeroing issue about the disparate use of zeroing.

[00:12:00] Speaker 04:
So we've covered that.

[00:12:02] Speaker 04:
We made another argument separately, which is that also during the threshold meaningful difference test, not only was Commerce using zeroing in an unequal manner to distort the results, they were also running their test on all sales.

[00:12:19] Speaker 04:
What I mean by all sales is those that were found to be targeted and those that were found to not be targeted.

[00:12:25] Speaker 04:
And so we said that that was

[00:12:28] Speaker 04:
not only unlawful, it's distortive.

[00:12:32] Speaker 05:
When you say those that they're going to be targeted, what does it mean to be targeted?

[00:12:36] Speaker 04:
Well, in the 8th Administrative Review, Commerce adopted its new differential pricing notes.

[00:12:44] Speaker 05:
Different methodology.

[00:12:45] Speaker 05:
Different methodology.

[00:12:46] Speaker 05:
I'll call it a Cohen cost instead of Nales.

[00:12:48] Speaker 04:
So, specifically a targeted sale or

[00:12:52] Speaker 04:
they refer to as differentially priced sale is one that passes the Cohen's D test.

[00:12:56] Speaker 04:
Now, we're not challenging Cohen's D. It's hardly complicated, but basically it's used to measure a spread in prices using pooled standard deviations.

[00:13:06] Speaker 04:
And so what they do is they test all U.S.

[00:13:10] Speaker 04:
sales.

[00:13:11] Speaker 05:
And what kind of sale passes the Cohen test?

[00:13:15] Speaker 05:
It has to be.

[00:13:16] Speaker 05:
So it has to deserve the label targeted.

[00:13:18] Speaker 04:
It has to pass what's called the large coefficient in Cohen's D, which just means there's a really big difference in the standard deviation of the prices, and they do it separately by customer, region, and time period.

[00:13:29] Speaker 05:
This is all still simply with regard to the activity in the United States.

[00:13:35] Speaker 05:
There's no relevance at all to the home market.

[00:13:37] Speaker 04:
That's correct.

[00:13:37] Speaker 04:
It's just looking at U.S.

[00:13:38] Speaker 04:
prices.

[00:13:39] Speaker 04:
They run the test three different times against every sale.

[00:13:46] Speaker 04:
I've used an example of if you put a bunch of quarters on the table, every sale has a chance to pass this test three times.

[00:13:53] Speaker 04:
either by customer, by region, or by time period.

[00:13:56] Speaker 04:
And once it passes, they take it off the table and they put it in their box.

[00:13:59] Speaker 04:
So they collect all the passing sales.

[00:14:01] Speaker 04:
So some pass and some don't pass.

[00:14:03] Speaker 04:
Even when they do it three times, some may not pass.

[00:14:06] Speaker 04:
And that, again, is looking in the U.S.

[00:14:08] Speaker 05:
only amongst... And the whole purpose of this is to ascertain whether there's some meaningful difference in prices.

[00:14:16] Speaker 04:
Yes.

[00:14:16] Speaker 05:
Or timing or location.

[00:14:19] Speaker 04:
Well, to look for significant differences in prices, which then signals that there may be targeting going on, which would allow you to mask a higher price sale and a lower price sale.

[00:14:33] Speaker 05:
But the interesting part about this is... When you run the test on the individual transaction, you have to determine that it's not significantly different.

[00:14:41] Speaker 05:
It then passes the test and it's no longer considered.

[00:14:45] Speaker 04:
actually fails the test, but yes, it goes into the pool of non-targeted sales.

[00:14:53] Speaker 04:
Ultimately, they'll create two pools of sales, but they do the test

[00:14:59] Speaker 04:
within the same averaging groups that I was talking about before.

[00:15:03] Speaker 04:
So they'll do it by a control number, by a unique product.

[00:15:06] Speaker 04:
And I think that's significant because what they're looking at in their pattern analysis, they are comparing for high and low prices within the averaging group.

[00:15:17] Speaker 04:
And they're deciding for the averaging group as a whole, right?

[00:15:22] Speaker 04:
Okay, there's a pattern or there are not.

[00:15:23] Speaker 04:
So they compare.

[00:15:25] Speaker 04:
I see my time is up there.

[00:15:27] Speaker 03:
Okay, let's hear from the other side and we'll save some of your final time.

[00:15:35] Speaker 05:
So does that end the argument on the second case?

[00:15:38] Speaker 03:
Well, we didn't really get to it, but I was going to ask Mr. Carlin to elaborate on the second case.

[00:15:43] Speaker 03:
We'll see where that takes you.

[00:15:46] Speaker 02:
Yeah, I think the way this was set up, Your Honor, is now we're in the second case.

[00:15:50] Speaker 02:
So he's had his opening argument in the second case.

[00:15:53] Speaker 03:
Come to the microphone so it's recorded.

[00:15:55] Speaker 05:
He wasn't up 15 minutes.

[00:15:57] Speaker 03:
Well, let's see what happens.

[00:16:02] Speaker 02:
Well, before I start, Your Honor, I think he was up for his 12... My recollection is, Mr. LaFranca, we saved three minutes for rebuttal time in the second case, so he's been up for his 12 minutes in the second case.

[00:16:11] Speaker 03:
Now we're going to do our... It's all right.

[00:16:13] Speaker 03:
We still need to know your view of the difference between the seventh and eighth administrative review.

[00:16:19] Speaker 02:
Sure.

[00:16:25] Speaker 02:
Well, there's a straightforward difference between the seventh and eighth administrative reviews, which is that commerce moved from its former test, which was called the nails test, to what is referred to as the differential pricing test.

[00:16:39] Speaker 02:
One important thing that was not clear in Appelan's comments is that the differential pricing test involves whole groups of sales.

[00:16:46] Speaker 02:
So that colloquy at the end where he was talking about if an individual sale doesn't pass a bucket,

[00:16:51] Speaker 02:
That's not quite how it works.

[00:16:53] Speaker 02:
Commerce compares whole groups of sales to a particular purchase or region or time period to the rest of the sales.

[00:17:00] Speaker 02:
And if that group of sales exhibits a significant price difference, then that group passes the Cohen's D test.

[00:17:08] Speaker 02:
And I think that's important to note in the context of these two cases being before the court together, because the differences in the test is what results, for example, in a much higher percentage of sales that pass.

[00:17:20] Speaker 02:
differential pricing versus the NAILS test.

[00:17:23] Speaker 02:
And the NAILS test is a bunch of very stringent criteria.

[00:17:26] Speaker 02:
So uniformly, you get much lower numbers of percentages of sales that pass.

[00:17:32] Speaker 02:
It might look strange in the context of this case where you have much higher percentages that pass.

[00:17:37] Speaker 03:
So you're saying it's zeroing in the calculation for the group?

[00:17:42] Speaker 02:
There is no difference in the meaningful difference test.

[00:17:45] Speaker 02:
the nails test and the differential pricing test are the first stage of the calculation.

[00:17:50] Speaker 03:
There is zeroing.

[00:17:52] Speaker 02:
There is zeroing.

[00:17:54] Speaker 02:
The meaningful difference test works the same way in the seventh review as it does in the eighth review where commerce applies the A to A methodology

[00:18:01] Speaker 02:
without zeroing and the A to T methodology with zeroing to determine whether there's a meaningful difference.

[00:18:08] Speaker 03:
But I've never understood.

[00:18:09] Speaker 03:
The numbers are there.

[00:18:10] Speaker 03:
They have to be there in order to be zeroed.

[00:18:12] Speaker 03:
Why don't you just push a button on the computer and say, or I treat these as a group with the actual numbers, not the zeroed numbers?

[00:18:23] Speaker 02:
Well, in some sense, that's what commerce does in the sense that with the differential pricing test, it runs the analysis automatically.

[00:18:32] Speaker 02:
I think to get at the core of your honor's question, throughout these proceedings, Apex's position has been that it's somehow unfair that we end up with a rate with the A to T methodology and not a rate with A to A methodology.

[00:18:46] Speaker 03:
Well, it is unfair.

[00:18:47] Speaker 03:
You get a dumping margin.

[00:18:49] Speaker 03:
You say, never mind.

[00:18:50] Speaker 03:
We'll treat it as zero.

[00:18:52] Speaker 02:
Well, the reason that it's fair, your honor, is because this isn't just math.

[00:18:58] Speaker 02:
These are all sales that were actually dumped.

[00:19:01] Speaker 02:
The reason that you get a rate with the A to T methodology that you don't get with the A to A methodology is because there are a whole bunch of sales that were sold here at less than fair value that were dumped, but that get masked because of the offsetting function of the A to A methodology.

[00:19:20] Speaker 03:
You end up with... Are you justified?

[00:19:23] Speaker 03:
How can you justify that other than as to make the calculation feasible?

[00:19:29] Speaker 02:
Well, it's justified for a couple reasons.

[00:19:33] Speaker 02:
First, because commerce only switches to looking at the A to T methodology as a potential comparison if it reaches that precondition of there being a pattern of significant price differences under 1677F1D1B.

[00:19:51] Speaker 02:
If you have a situation where a customer says, hey, wait a minute, we're looking at this and we see a pattern of price differences to a particular purchase or region or time period that shows that there's potentially a mass dumping situation going on, then it's appropriate for us to look at the A to T methodology, which the statute authorizes us to look at in those circumstances.

[00:20:13] Speaker 06:
Can I ask, does commerce, I don't know that it did this in this case, but in some other case, and I was trying to, I guess, in my own mind, construct a simple-minded market economic

[00:20:29] Speaker 06:
story in response to Judge Newman's question.

[00:20:33] Speaker 06:
If there's a, if prices that Apex, if Apex is selling in California at 14 and it is selling in the rest of the country at 27, that's probably telling you something about difference in market conditions in California and the rest of the country.

[00:20:51] Speaker 06:
And therefore probably telling you something about domestic sellers

[00:20:56] Speaker 06:
the beneficiaries of this whole whole regime so that in some actually meaningful antitrust type sense this would be a separate market segment and therefore when you find a pattern there's reason to say if you can otherwise show dumping which now introduces the home market

[00:21:16] Speaker 06:
price that you can compensate for that because the group of harmed sellers, domestic sellers, is probably different if there's a sufficient difference disparity within the U.S.

[00:21:29] Speaker 06:
by either by customer or by time period or by region of the prices.

[00:21:36] Speaker 06:
Is that A?

[00:21:38] Speaker 06:
That's largely what's going on here.

[00:21:40] Speaker 06:
Yeah, but did commerce ever

[00:21:42] Speaker 06:
or Congress in coming up with this regime, or somebody say, here's why there's actually a connection between

[00:21:53] Speaker 06:
intra-U.S.

[00:21:54] Speaker 06:
price disparities and what we are going to do about targeting, about dumping the unit that we're going to use in deciding whether there's dumping nationwide or sub-area.

[00:22:09] Speaker 02:
Sure.

[00:22:10] Speaker 02:
The statute does not set up a regime, and that's something that this court specifically addressed in its JBF RAC decision, which concerned the NAILS test targeted dumping, or I'm sorry, mass dumping methodology.

[00:22:21] Speaker 02:
Commerce doesn't look at the reasons behind a pattern of price differences.

[00:22:28] Speaker 02:
It's kind of a bramble bush.

[00:22:30] Speaker 02:
Instead, commerce looks to see whether there is such a pattern and then whether the dumped sales that are causing that disparity in price differences are getting masked by other non-dumped sales.

[00:22:43] Speaker 02:
And that's the whole point.

[00:22:45] Speaker 02:
Offsetting is masking.

[00:22:45] Speaker 06:
In the absence of a pattern, masking is just perfectly fine under this statute.

[00:22:51] Speaker 02:
Well, I wouldn't quite go that far, Your Honor.

[00:22:54] Speaker 06:
That's why you don't do zeroing in A to A, unless there's this pattern.

[00:22:59] Speaker 02:
It certainly doesn't provide a remedy.

[00:23:01] Speaker 06:
There could well be some underpriced sales.

[00:23:07] Speaker 06:
by underpriced, I mean of course positive, it's sort of nice to get the mirror out of this.

[00:23:12] Speaker 02:
Right, I know, I know.

[00:23:13] Speaker 06:
Underpriced sales and there's no remedy because elsewhere in the country you're overpricing.

[00:23:22] Speaker 06:
But where there's a pattern of intra-US price disparity, the statute says, that's one we can single out and actually get at the sub-market, to use an antitrust term, where there is dumping.

[00:23:39] Speaker 02:
Sure.

[00:23:40] Speaker 02:
And the A to T method is the statutorily prescribed methodology for doing that.

[00:23:46] Speaker 02:
There's one other very important statutory argument for me to articulate here.

[00:23:52] Speaker 02:
We've mentioned this a couple times in our brief, and the court picked up on it in this case, in the POR8 case, which is that it's been widely recognized that zeroing is an inextricable part of the A to T methodology.

[00:24:04] Speaker 02:
But it's beyond that.

[00:24:05] Speaker 02:
If you removed zeroing from the A to T methodology, it really becomes the A to A methodology.

[00:24:12] Speaker 02:
We've said it slightly differently, which is that the results would be the same.

[00:24:15] Speaker 02:
But as I've thought about it in preparing for the argument here,

[00:24:18] Speaker 02:
What really happens is if you take zeroing out of the A to T methodology, it becomes the A to T methodology.

[00:24:26] Speaker 02:
And I'll explain that in a little more detail in a moment.

[00:24:28] Speaker 02:
The important statutory point is that the statute provides for both of these remedies.

[00:24:33] Speaker 02:
And so it's a well-known canon of statutory construction that Congress, excuse me, isn't providing for multiple remedies if they're all really the same thing.

[00:24:43] Speaker 02:
And that's been one of the rationales, or maybe not a rationale, but a way to explain why the A to T methodology still has to remain separate from the A to A methodology.

[00:24:53] Speaker 02:
Now, to get a little bit in the weeds on that, the reason that A to T without zeroing becomes A to A

[00:25:00] Speaker 02:
I can demonstrate with numbers.

[00:25:02] Speaker 02:
Let's say that the U.S.

[00:25:03] Speaker 02:
price of the normal value is all 10, and you're comparing averages to averages.

[00:25:07] Speaker 02:
10, 10, you have zero dumping margin, right?

[00:25:11] Speaker 02:
If you're using the A to T methodology, if you have one at 2 and one at 18,

[00:25:15] Speaker 02:
With zeroing, you find the dumping on the tube, and you zero out the sail that's masking it on the A team.

[00:25:23] Speaker 02:
If you start offsetting, as you do in the A to A methodology, with the A to T methodology as well, you're really going back to, it's turning the A to T methodology into an averaging methodology, because you're going to have an eight and a minus eight, and you're going to end up with 10 again.

[00:25:38] Speaker 02:
It's another way of explaining why zeroing is an inherent part of the A to T methodology.

[00:25:45] Speaker 02:
If the A to T methodology didn't have zeroing, and Congress has not articulated any intention to stop zeroing when it uses A to T. In fact, it's repeatedly said in the cases on zeroing that this is why we always use zeroing with A to T today.

[00:26:01] Speaker 05:
If I wanted to get myself a little better educated and know how commerce dealt with these situations before NAILS.

[00:26:09] Speaker 05:
NAILS, I think it was 2006, something like that?

[00:26:12] Speaker 05:
Because we've gone from NAILS to Cohen in a one year time period.

[00:26:16] Speaker 05:
Is there some place I could go look to learn about how these cases were treated before NAILS?

[00:26:22] Speaker 02:
I believe, I don't have the site, it's not something you've cited in these proceedings, but there's a Court of International Trade case called Mid-Continent Nail, which upheld the nails test, which goes through the whole history of commerce's targeted dumping.

[00:26:41] Speaker 02:
The POR7 decision in Judge Goldberg's case also provides a reasonable amount of background about commerce's

[00:26:47] Speaker 02:
at least starting with nails.

[00:26:49] Speaker 06:
Yeah, but the question was really about pre-nails.

[00:26:52] Speaker 06:
There's a puzzle here about what you did under A to A before you stopped doing zero.

[00:27:02] Speaker 02:
Right.

[00:27:02] Speaker 02:
I mean, there was not a lot of target-tumping allegations pre-nails tests.

[00:27:07] Speaker 02:
So it was a rarely-used phenomenon.

[00:27:09] Speaker 02:
And in fact,

[00:27:12] Speaker 02:
This goes to some of the limiting rule issues that we haven't even discussed today and probably don't need to.

[00:27:17] Speaker 02:
But Commerce explained when it withdrew that rule, which only applied to investigations, that it hadn't really had a lot of experience with targeted dumping at the time.

[00:27:29] Speaker 06:
It promulgated that rule.

[00:27:33] Speaker 06:
the second attempt at a regulatory withdrawal of the limited limit?

[00:27:37] Speaker 02:
My understanding, that happened in 2014.

[00:27:39] Speaker 02:
I'm not aware of any... It's completed?

[00:27:40] Speaker 02:
I believe so.

[00:27:42] Speaker 02:
I'm not aware of... You know, I see cases.

[00:27:44] Speaker 02:
I'm not aware of any litigation that has said that that was wrong or there's something... I don't even know if it's been challenged.

[00:27:51] Speaker 02:
I tend to doubt that.

[00:27:52] Speaker 03:
But if it would affect at least the eighth administrative review, I suppose it's relevant.

[00:27:59] Speaker 03:
Would you comment briefly

[00:28:01] Speaker 03:
Again, on the difference between the seventh and eighth.

[00:28:05] Speaker 02:
Yes.

[00:28:06] Speaker 03:
Since this is a separate appeal.

[00:28:09] Speaker 02:
Yes.

[00:28:11] Speaker 02:
There are both differences and several differences.

[00:28:16] Speaker 02:
I'll try not to draw it out too far.

[00:28:18] Speaker 02:
Different tests, the nails test versus the differential pricing test.

[00:28:21] Speaker 02:
Very different records.

[00:28:23] Speaker 06:
In this case... On the specific issues presented to us, my understanding is we do not have an issue about the difference between the NAILS test and the Cohen D test for determining if the pattern existed.

[00:28:40] Speaker 02:
No, I don't think we do.

[00:28:44] Speaker 05:
There's no challenge in the ascertainment of a pattern in either one of the two cases.

[00:28:51] Speaker 02:
That's right.

[00:28:51] Speaker 02:
That's right.

[00:28:52] Speaker 05:
It's what you do after that step.

[00:28:54] Speaker 02:
That's right.

[00:28:56] Speaker 02:
Their legal arguments are slightly different in that.

[00:28:59] Speaker 05:
The argument that they were held, Judge Goldberg said they had waived because they hadn't sufficiently made it.

[00:29:05] Speaker 05:
That's the applying to all.

[00:29:07] Speaker 02:
That's a factual difference between the seventh review and the eighth review?

[00:29:10] Speaker 05:
I understand that.

[00:29:10] Speaker 05:
But then they repackaged that argument in their petition for rehearing before Judge Goldberg in sort of legal question.

[00:29:17] Speaker 05:
He rejected that again, saying you can't dress it up in a different way.

[00:29:21] Speaker 05:
They've made that same argument in the second case.

[00:29:24] Speaker 02:
Yes, and that's where there's an important factual difference, because the facts are against them in the second case, because in the second, their argument was waived.

[00:29:31] Speaker 05:
I understand that, but I mean, their argument that it was wrong to apply to all the goods they're making in this case is two different tests, one under Cohen, one under Bales.

[00:29:42] Speaker 05:
Right.

[00:29:42] Speaker 05:
Is that legal argument that they're making different in this case than it was in the earlier?

[00:29:47] Speaker 02:
It's slightly different.

[00:29:50] Speaker 02:
First of all, in the first case, they said you can't apply the A to T method to all sales at what they call the remedy stage.

[00:29:59] Speaker 02:
Once you decide that there's a pattern and the A to A method can't account for it, they're saying at the remedy stage, you shouldn't be able to

[00:30:07] Speaker 02:
applied all sales.

[00:30:08] Speaker 02:
And there are a number of good arguments why that was wrong.

[00:30:11] Speaker 02:
Judge Goldberg explained why it wasn't consistent with the relevant part of the statute.

[00:30:15] Speaker 02:
Commerce explained why you're not getting, in the NAILS test context, you're not getting the whole pattern because the NAILS test is only looking at the lower sales and it's only looking at individual sales as opposed to whole groups.

[00:30:26] Speaker 02:
And so in order to get up in that 7-3-U NAILS text context,

[00:30:30] Speaker 02:
in order to get the whole pattern commerce at that time applied A to T uniformly.

[00:30:36] Speaker 02:
There are a whole set of arguments in that case.

[00:30:37] Speaker 02:
In this case, and this is at page 51 of their brief, they're conceding that commerce can apply to all sales at what they call the remedy phase, but they're saying you can't look at all sales during the meaningful difference test.

[00:30:51] Speaker 02:
And that's a bad argument.

[00:30:55] Speaker 02:
What they're trying to do is kind of manipulate the data to make it

[00:30:59] Speaker 02:
to make it look the way they want it to look.

[00:31:03] Speaker 02:
What do I mean by that?

[00:31:04] Speaker 02:
They're saying, well, if you just look at the dump sales and don't zero, then we find similar amounts of dumping with the A to A and A to T.

[00:31:15] Speaker 02:
But that just proves our point, right?

[00:31:17] Speaker 02:
Because what they're doing is saying, hey, there's a whole bunch of dumping going on.

[00:31:20] Speaker 02:
In fact, there was, as we know in our brief, seven figure amounts of dumping going on when you do it that way.

[00:31:28] Speaker 02:
And second, that's not the way the A to A method ever

[00:31:32] Speaker 02:
ever works.

[00:31:33] Speaker 02:
The whole point is that the A to A has this offsetting function, which in the context of when you have this pattern, offsetting is masking.

[00:31:40] Speaker 02:
It's taking sales with positive margins and wiping out the dumping margins that result from sales that are actually dumped.

[00:31:50] Speaker 02:
That's their argument here.

[00:31:52] Speaker 02:
It's wrong because obviously if you're saying, well, is there a difference between the way we apply these two methodologies, you want to look at the way they're actually would be applied.

[00:32:02] Speaker 02:
Not saying, well, if we take the pinky of this thing and the pinky of this thing,

[00:32:06] Speaker 02:
then there's not much of a difference between them.

[00:32:09] Speaker 02:
I mean, that just proves the point.

[00:32:10] Speaker 06:
Can you clarify this?

[00:32:12] Speaker 06:
I think there was some material in your briefs about this, and I'm just not remembering.

[00:32:16] Speaker 06:
So once you've identified the customer, the time period, or the region,

[00:32:28] Speaker 06:
that under the pattern provision.

[00:32:34] Speaker 06:
And I don't remember, in the first case, it was a time period.

[00:32:37] Speaker 06:
Is this also the same time period?

[00:32:38] Speaker 02:
I think it was a time period and a customer in the first case.

[00:32:42] Speaker 06:
And in the second case?

[00:32:43] Speaker 02:
In the second case, I'm not, because they're just pulling groups together.

[00:32:46] Speaker 06:
Anyway, so once you've identified the special group, when did commerce in either of these two

[00:32:58] Speaker 06:
proceedings, do averaging within that group, or did it zero, that is non-zero averaging, just take the entire group of these sales and say, let's take the average of the US prices in those, compare it to the normal price and figure out if there's dumping, or did it say, well, this is a group, you know, 80% of the sales there are seriously underpriced, 20% not, let's zero out the 20% and then do that?

[00:33:28] Speaker 02:
Yeah, so unfortunately the answer to your question is slightly complicated and I want to make sure I give it to you.

[00:33:33] Speaker 02:
I appreciate the leeway to do so.

[00:33:36] Speaker 02:
I think there are two different ways.

[00:33:40] Speaker 02:
There's during the actual differential pricing test.

[00:33:44] Speaker 02:
which deals with groups.

[00:33:46] Speaker 02:
So, commerce is saying, hey, if this group passed the differential pricing test, then all of the sales in that group are going to be considered part of a pattern of significant price differences.

[00:33:56] Speaker 06:
Right, my question was after you've identified the group.

[00:33:58] Speaker 06:
You said California bad pattern.

[00:34:02] Speaker 02:
So, the T of the A to T

[00:34:04] Speaker 02:
is average to individual transactions on the export price side.

[00:34:09] Speaker 02:
So the whole part of the point of the A to T is that they're not averaging.

[00:34:13] Speaker 02:
They're looking at an average of the normal values and comparing that to the individual transactions

[00:34:18] Speaker 02:
in the United States, and that's part of what helps reveal what's called, what Congress has termed the implicit masking and explicit masking.

[00:34:27] Speaker 02:
When they say implicit masking, they're talking about masking that occurs because if you're using A to A, you're doing averaging, so you're already smoothing out some of the differences.

[00:34:36] Speaker 02:
There might be dump sales that are averaged with.

[00:34:39] Speaker 02:
non-dumped sales.

[00:34:41] Speaker 02:
Then there's the explicit masking, which is in part what zeroing takes care of, where you have the number on the US side is coming out dumped, but it's getting masked by non-dumped sales

[00:35:01] Speaker 02:
in other comparisons.

[00:35:02] Speaker 02:
So at that final remedy stage, the whole point of the T in A to T is that they're looking at individual transactions.

[00:35:08] Speaker 02:
They ultimately aggregate the results.

[00:35:11] Speaker 02:
That may be the one final difference between this case and the previous case is there's this so-called double zeroing argument at the tail end of Apex's brief.

[00:35:26] Speaker 06:
I hope this is, I've got this right.

[00:35:28] Speaker 06:
If California were identified as the bad pattern area, you would not actually zero out any of the overpriced sales in California.

[00:35:44] Speaker 06:
You said you were doing individual transactions.

[00:35:46] Speaker 06:
So every single sale in California, you would compare to the, I don't know, the $12 price in the home market.

[00:35:56] Speaker 06:
And presumably, you'd find a lot of the California prices, U.S.

[00:36:01] Speaker 06:
California prices under 12, but there'd be a few above 12, and they would all count in the aggregation.

[00:36:08] Speaker 02:
Well, no, Your Honor.

[00:36:12] Speaker 02:
With average transaction, you're looking at individual transactions.

[00:36:16] Speaker 02:
So if there were a bunch of sales in California and a bunch of sales in the rest of the United States.

[00:36:22] Speaker 06:
Forget about the rest of the United States.

[00:36:24] Speaker 06:
You want to know what happens to the 17 sales in California, of which 13 were underpriced and four were overpriced.

[00:36:31] Speaker 02:
That's right.

[00:36:32] Speaker 02:
You understand what I mean by underpriced.

[00:36:33] Speaker 02:
I do.

[00:36:33] Speaker 02:
I do understand, Your Honor.

[00:36:35] Speaker 02:
Compared to the home country.

[00:36:36] Speaker 02:
There would be zeroing there in the sense that you would... So it's not actually transaction specific?

[00:36:42] Speaker 02:
It is, and maybe I just need to figure out how to best explain it to Your Honor.

[00:36:50] Speaker 02:
If you had 10 sales in California, and eight of them were, and let's say the normal value is 10, if eight of the 10 sales were at

[00:37:04] Speaker 02:
five dollars and two of the sales were at fifteen dollars.

[00:37:12] Speaker 02:
Commerce would identify the dumping and the average transaction method would compare the ten to the eight sales that would have five and each of those would be dumped by five dollars.

[00:37:21] Speaker 02:
It would compare the 10 to the two sales that were at 15 and find that there was no dumping.

[00:37:27] Speaker 02:
That's what zeroing is.

[00:37:28] Speaker 02:
You're essentially finding that there's no dumping on those two sales.

[00:37:31] Speaker 02:
And so rather than those sales partially masking the dumping on the first eight sales, it would be set at zero and commerce would identify that there were eight sales that were masked by, you know, there would be a dumping margin of like five bucks.

[00:37:49] Speaker 02:
on those sales, because you're comparing to individual transactions.

[00:37:54] Speaker 02:
If you're using an average-to-average methodology, then you would average all those sales, come up with the average number, and compare that to the normal value of time.

[00:38:07] Speaker 02:
I hope I answered your honor's question.

[00:38:10] Speaker 03:
Thank you.

[00:38:11] Speaker 03:
We'll hear from Ms.

[00:38:12] Speaker 03:
Relig to explain it further.

[00:38:27] Speaker 00:
Good morning.

[00:38:28] Speaker 00:
In the late arrival, may it please the court.

[00:38:30] Speaker 00:
I'm Whitney Rolig on behalf of the Ad Hoc Shrimp Trade Action Committee.

[00:38:34] Speaker 00:
And I just wanted to highlight one additional nuance that appears in the eighth review as opposed to the arguments raised in the seventh review.

[00:38:40] Speaker 00:
And that is the exhaustion argument that we raised in our brief, where APEX is trying to belatedly claim that it has a Chevron 1 argument with respect to the differential pricing analysis.

[00:38:54] Speaker 00:
That is incorrect.

[00:38:56] Speaker 00:
They are trying to avoid the question in all of this of whether commerce acted reasonably by trying to say that the statute was unambiguous.

[00:39:04] Speaker 00:
They failed to articulate that theory below to the agency and commerce should have had the opportunity to refute that reasoning at the outset.

[00:39:12] Speaker 00:
This is particularly important because APEX's entire Chevron 1 argument relies on extra statutory terms.

[00:39:20] Speaker 00:
such as targeted dumping, targeted sales, as opposed to the statutory term of significant price differences.

[00:39:27] Speaker 00:
We just want to make sure that the court rejects that attempt outright and goes directly to the question of whether commerce interpreted the statute reasonably.

[00:39:35] Speaker 00:
And again, this goes to the idea of whether commerce can determine whether A to A accounted for the mass dumping, the significant price differences.

[00:39:46] Speaker 00:
with respect to all sales versus just with respect to the targeted sales, as Apex has put it.

[00:39:51] Speaker 00:
So we want to make sure the court stays focused on that.

[00:39:55] Speaker 00:
If there are no other questions, that's all I wanted to raise.

[00:39:58] Speaker 03:
So tell me how this would affect the remedy.

[00:40:01] Speaker 03:
Assuming that after all these complicated AA and AP transactions, there's some overall that there is a margin of dumping.

[00:40:12] Speaker 03:
Then the remedy is assessed against all inputs?

[00:40:15] Speaker 00:
Exactly, exactly.

[00:40:17] Speaker 00:
So again, what commerce is measuring is how, when they apply A to A to all the sales, as they do when they measure dumping overall, how does that compare to when they apply A to T?

[00:40:29] Speaker 00:
If there is a meaningful difference, as there was in this case, because the margin crossed from zero to an actual measurable margin, that is considered a meaningful difference.

[00:40:38] Speaker 00:
So then they do apply A to T. If Apex had its way,

[00:40:43] Speaker 00:
Commerce would only compare A to A and A to T on the sales that are identified as having significant price differences.

[00:40:51] Speaker 00:
So it's a much smaller subset of sales.

[00:40:53] Speaker 00:
And then Apex makes other adjustments to that comparison.

[00:40:56] Speaker 00:
For example, having zeroing or not zeroing in both sides, which, as has been explained extensively today, just doesn't make sense as a logical matter.

[00:41:08] Speaker 00:
So again, Commerce acted reasonably in

[00:41:12] Speaker 00:
evaluating the significant price differences and how A to A accounts for those in the context of all sales, because that's how it's actually going to measure dumping overall.

[00:41:23] Speaker 00:
Apex has tried to say the statute unambiguously prohibits that, and that's simply not the case.

[00:41:28] Speaker 00:
That's an untimely argument, and it just does not square with the language of the statute.

[00:41:33] Speaker 03:
Thank you.

[00:41:37] Speaker 03:
Okay.

[00:41:38] Speaker 03:
Mr. O'Franco, three minutes of rebuttal.

[00:41:44] Speaker 04:
a couple points in rebuttal.

[00:41:49] Speaker 04:
One point I'd like to clarify is

[00:41:53] Speaker 04:
Council for the U.S.

[00:41:54] Speaker 04:
government insinuated that A to T and A to A would become the same, and depending what you do, it's zero.

[00:42:01] Speaker 04:
And we're here to say, again, that is not true.

[00:42:05] Speaker 04:
If you look at their brief, what they say is they would be the same with offsets, if you did offsets on both sides.

[00:42:11] Speaker 04:
But if you do what we propose, which is zeroing on both sides, they would not be the same.

[00:42:15] Speaker 04:
because that is our point, that that is the mass dumping that's revealed.

[00:42:20] Speaker 04:
Now, I'll try to spare you another example, other than to just say that that is not true, that they would not always be the same.

[00:42:27] Speaker 04:
If you zero on both sides, they would not be, number one.

[00:42:30] Speaker 04:
And number two, if you do what we propose, which is to limit the test to the targeted sales, the results would not be the same.

[00:42:36] Speaker 05:
Help me get how you zero in the A to A.

[00:42:39] Speaker 05:
Under A to A, you would zero... Transactions, you know, you've got four different prices, 10, 11, 12.

[00:42:47] Speaker 05:
How do you zero?

[00:42:49] Speaker 05:
You zero, again, not within the average... Zero with respect to the home market price, is that what you're looking at?

[00:42:55] Speaker 04:
No, you do the comparison with the home market price and you take the difference, right?

[00:42:59] Speaker 04:
And so our point is that you cannot zero under A to A within the averaging group because it's hidden.

[00:43:06] Speaker 04:
Where you can zero is across the averaging groups, because that, if you have a negative margin in a different averaging group, you would just set that to zero.

[00:43:18] Speaker 04:
That's how you would do it, across the averaging groups, not within an averaging group, which is actually our point here.

[00:43:23] Speaker 05:
How many averaging groups were there in each of these two cases?

[00:43:27] Speaker 04:
Well, there's a lot of control numbers, so I don't know exactly, but there were a lot.

[00:43:31] Speaker 04:
I mean, in some cases, there could be thousands.

[00:43:33] Speaker 05:
Is that math anywhere in the briefs I could look at?

[00:43:37] Speaker 04:
You mean that specific point?

[00:43:39] Speaker 05:
I think it would be... Yeah, because what you're saying, now I understand how you're not averaging inside of A to A. You're saying, well, you've got an A to A analysis on this group, this group, and this group, and this group.

[00:43:53] Speaker 05:
And you're saying that depending on the results, if some produced a positive, some a negative, you want to throw out the bad ones.

[00:44:01] Speaker 05:
That's right.

[00:44:02] Speaker 05:
I haven't seen the math anywhere in this case to how that works.

[00:44:05] Speaker 05:
And you're making that argument in both cases.

[00:44:08] Speaker 05:
Same argument in both cases.

[00:44:10] Speaker 04:
It's essentially the same argument, yes.

[00:44:13] Speaker 04:
To answer your question, the data is on the record in the confidential appendices in terms of the detailed calculational worksheets.

[00:44:25] Speaker 04:
It's all buried in the computers.

[00:44:28] Speaker 04:
It's a complicated subject.

[00:44:29] Speaker 04:
There's complicated calculations.

[00:44:31] Speaker 04:
I'm trying to just give you simple examples, but in some cases, there could be thousands of averaging groups.

[00:44:37] Speaker 04:
And so the point we're making, if nothing else, is that, you know, what is masking?

[00:44:41] Speaker 04:
That is the limitation of A to A. It's within that averaging group.

[00:44:44] Speaker 04:
And you can't actually zero in there.

[00:44:47] Speaker 04:
But you can zero across the averaging groups because that's what Commerce did for, I don't know, how many years before they abandoned zero, 20 years.

[00:44:56] Speaker 04:
So the one point I want to make is the results would not always be the same, as was articulated.

[00:45:02] Speaker 04:
I wanted to pick up on another point that your honor made, which was that

[00:45:07] Speaker 04:
Sometimes masking is fine.

[00:45:09] Speaker 04:
Yes, sometimes masking is fine.

[00:45:12] Speaker 06:
Wherever AA is the accepted rule, masking is going to happen.

[00:45:17] Speaker 04:
Masking is going to happen within that average, that's correct.

[00:45:21] Speaker 04:
Now, across the averaging groups, the point we're trying to make is not all masking is bad, not all masking is prohibited under the statutory approach.

[00:45:31] Speaker 04:
Only that tied to the significant price differences.

[00:45:34] Speaker 04:
And the one broad point we're trying to make is that commerce isn't doing that analysis.

[00:45:40] Speaker 04:
It's taking shortcuts.

[00:45:41] Speaker 04:
It's making assumptions.

[00:45:43] Speaker 04:
It's simply using a zeroing methodology to amplify the differences between these two margins and thereby assuming that every non-dump sale, every negative dump sale is masking impermissibly a dump sale.

[00:45:57] Speaker 04:
And that's not always true.

[00:45:59] Speaker 04:
They need to look at it.

[00:46:01] Speaker 04:
And what we're saying is it's not only the zeroing, they're also combining that distortion by running the calculation on all sales, including those that are targeted and those that are not targeted.

[00:46:12] Speaker 04:
So at the end of the day, the comment was made it's about dumping.

[00:46:15] Speaker 04:
Actually, this case is about non-dumping.

[00:46:18] Speaker 06:
Can I just double-check something?

[00:46:21] Speaker 06:
Do you happen to know, is this so-called limited rule, limiting rule, whatever?

[00:46:27] Speaker 06:
Limiting rule.

[00:46:28] Speaker 06:
Has that been finally repealed?

[00:46:30] Speaker 04:
It was finally repealed.

[00:46:32] Speaker 04:
After this case, our view is the effective date of that repeal was after this case.

[00:46:36] Speaker 06:
And had that rule, that specific rule, ever been applied in a review context before?

[00:46:45] Speaker 06:
It had not.

[00:46:46] Speaker 06:
So your argument is that because at the time relevant here it was on the books, and by its terms applicable to investigations, it should be applied in fact for the first time to a review.

[00:47:03] Speaker 04:
Yes, that's correct.

[00:47:04] Speaker 04:
Or at least explain why it's not being applied now that we know.

[00:47:07] Speaker 04:
Because it was a bad rule.

[00:47:08] Speaker 06:
I mean, for the same reasons that they repealed it.

[00:47:11] Speaker 06:
what we would argue is a good rule.

[00:47:13] Speaker 06:
Right, but it is at least a reason, as with precedent, to say we'll leave it alone for where it is, but we actually think it's not that strong, so we're not going to extend it.

[00:47:23] Speaker 04:
It's a reason, but they never gave the reason.

[00:47:26] Speaker 04:
Granted, they thought the rule was repealed, but they had acted illegally in repealing it.

[00:47:30] Speaker 04:
And be interested to hear what their reason would be, why they would treat a review differently now than an investigation when they're now treated the same.

[00:47:36] Speaker 04:
So, I mean, to that point,

[00:47:38] Speaker 04:
We think there's complete unfairness in that, right?

[00:47:40] Speaker 04:
I mean, commerce had promulgated, they had interpreted the statute at one point to say, okay, we should only apply this remedy.

[00:47:46] Speaker 04:
Now I'm talking about the remedy phase.

[00:47:47] Speaker 04:
Should only apply the remedy to the targeted sales.

[00:47:49] Speaker 04:
Then they withdrew the rule.

[00:47:51] Speaker 04:
And for a small time period, including both of, at least, no, no, the first case here, the AR7 case, they then started applying the remedy to all sales.

[00:47:59] Speaker 04:
Now, when they switched to the differential pricing analysis, they've sort of thrown out that across the board approach.

[00:48:05] Speaker 04:
And now,

[00:48:06] Speaker 04:
If you're within a certain pattern, they will only apply the sales to those targeted sales.

[00:48:11] Speaker 04:
So they have a hybrid approach.

[00:48:12] Speaker 04:
But the point is, they've only used that for a limited time.

[00:48:16] Speaker 03:
Okay, okay to move on.

[00:48:19] Speaker 03:
All right, I think that we need to be joined silently to ourselves.

[00:48:23] Speaker 03:
Thank you all.

[00:48:24] Speaker 03:
It's a helpful argument.