corporation has operations in a non market economy to what extent at the outset do you think we need to defer to the agency's construction of the statute here i believe that the statute is clear and unambiguous and therefore under the first it falls under the first prong of the chevron standard but the statute does talk about sales there really aren't sales in the market since in a non market economy are they there's prices that are set by fear based more on cost than on sales prices so doesn't that introduce the end uni's that would give you a little more difficulty well i think that the supervision applies for determining normal value includes language that refers to the word soul it refers to the word the cost of production and also to price in terms of the word soul where it is used if it says that the that the normal value of the form like product produced the show a country will be turned determined by a substantial quantity sold that doesn't dictate how normal value is determined only at best that there is a factual determination it requires that substantial quantities of the four like product must be sold by the affiliate entity which is consistent with the first criteria that the multinational corporation has to have a feeling of use at that produce the same merchandise in multiple facilities throughout different countries so as your view that this particular sentence is equally applicable to non market market economy yes your honor and that the the application of the m and c provision once those reports here are met those that language that follows and how one determines the the normal value for that for my product does not preclude the application to a multinational corporation that has affiliates in a non market economy similarly it would not preclude normal value if it's  a that's correct so i think we're back to the question about why given that congress chose to talk about price determinations doesn't that sort of suggest that congress did not  determined by price that that price is actually adjusted because it the language says the price of the at time of exportation from the exporting country but that doesn't make sense in terms of when you're looking at the affiliate the question that is being asked is what how do you determine the normal value of a form like pretty a product produced by the affiliate entity and that is supposedly the that that normal values determined by sales in the home market non exporting country the language of the statute says you determine that price based off of the price that export taishan from the exporting country so if we've got it here it's you've got a tiny mind which has operations in thailand and then it has affiliate entities that are operating in china and in vietnam and so when you're determining what the value is for the normal values for the if the form of products produced in china the statute says that you look at the price at which that sold in the export  country at the time of exportation which would be again back in thailand so we need that as an adjustment to what the provisions are under subsection a which is if you're determining price instead of looking at the price sale for consumption in the home market in thailand or in a third country market that so you look at the price at the time of exploitation from the export and country and so you're saying the price here doesn't include the other non market economies that it just feels with price in thailand right that you can read the statute as normal value is not dictated by the statute and that then that's the statutory provisions provide for different options for calculating normal value in a normal circumstance and that's the factors for production for non market effects production  think that that's what i meant that you were saying that normal value does not necessarily dictate their own dealing with market economies correct right and so the use of the term normal value as opposed to price is what allows the department or the  supervision to be applied circumstances for normal value is not determined by price and so side of the why don't we look at the fact that we've already got in sixteen seventy seven b subsection circumstance the case involves and a market economy with affiliate facilities that are in a non market economy and so the question i think is whether or not that that provision that applies to non market economies can be brought in under the special provision for the multinational corporation provision and where a market economy is is that is at issue and then we're back into the use of terms like price and sales that suggest there's a certain wisdom in what limitation on how the normal value is established for the export or if the export of normal value is determined in reference to prices for sales for consumption in the home market then the multinational corporation provision doesn't apply but under the third criteria  the the question is whether or not if the normal value of the form like product produced in the affiliate facility is higher than the normal value for the form like product produced and the exporters facility in that language there is no limitation on how the normal value is determined with respect to the affiliate facility and so it can be through non market economy it can also be through constructed value if the other country is a market economy which does not refer to prices but is instead a constructed value based based on full a statutory but it's instead based off of a logical deduction that if the the exporter at issue was in a non market economy they could never meet the second criteria and not on the block and another way but in the absence of that decision you think that there was no dispute that otherwise that's correct right the second criterion was met that's correct because in the in the the administrative record below the department found that time my sales in the home market were not sufficient to to provide a comparison to its export prices and therefore that a one c provision applied on the facts of the record i think that the the only other thing that i wanted to comment on was on the on the the involvement of congress in an acting the provision and if that our position is that the intention of the congress and have the lowest normal value the government reads the the legislative intent far more narrowly and refers to language that talks about where protected home markets are used in affiliate solti's to in effect subsidize sales from the export in country out if that is correct though that's an extremely narrow reading of them and supervision because it means that it can only apply where the affiliate entity has it there are normal value is determined by sales in their own home market so if even if you were to take price that you should be able to refer to price in situations where they are the affiliate on any selling the third country markets and that there is nothing in the statute as set out the image the provision that reads it narrowly so that it would only apply in circumstances where the affiliate had a protected home market that just it's that can't be developed from the language of the statu cd please the court there are two major points here that we'd like to make first this case is a chevron two type analysis with co's section subsection d expressly limits normal value to the by reference to the normal value at which the foreign light product is sold in substantial quantities so the question is whether the value created pursuant to the  non market economy statute the the value based upon the factors of production whether that's really a sale in the department of commerce concluded that it was not and there's doesn't doesn't congress all the time construct  tight shrimp here congress looks to what type made that the investigative company actually paid its suppliers entire currency or its wrong materials for its electricity for all of or all of the factors that went into the production of that merchandise so it constructs a value from tell you maizie actual experience in the non market economy country if there is a vietnamese company that is doing basically the same thing but paying in vietnamese currency what the dollar would do would be to look at what the prices or the value of that merchandise would be in some surrogate country would look to india or bangladesh and it wouldn't match the exact experience of the vietnamese company no all i'm s other various other contexts in the antidumping and otherwise does that they reconstruct it when they're dealing with non market economies using surrogates in other different continent adopting right in in market economies as well yes and in calculating constructed value but generally they do not use surrogates they use the actual experience of the respondent correct an otherwise congress has to resort to facts available which is which is an area of the law that's not at issue and pulling us group that is their firm rule here let's assume you have a multinational corporation and then you have major affiliates and seven moving market that first of all that but that it was not before the before the court but it would it might be reasonable for the agency to then look at the affiliates and other market economies see if the thai company here had a billion india it would be oh  asking us to give chevron deference to i was when there's a non market cop non market country implicated here is part of the mc then the m n c rule doesn't apply my wrong about that when the case involved no because the case only involves affiliates and not market economy countries and so the question is so are those that will so what the rule was that when there's a multinational corporation and all of your affiliates are not market economies this rule doesn't apply case by reference to the normal value at which the foreign like product is sold in substantial quantities those words in section sixteen seventy seven b g r m b u is as to whether looking then to the non market economy affiliates whether there is actual actually a sale so you're saying anytime there's a non market affiliate for an m m sit and then see i don't understand how the theory you're using to suggest one that there's an ambiguity and two that there ought to be deference because of the language that would lead you to it's either either if you have an affiliate and non market your out of this provision or not on an understand how else you could  various market economy but it has to affiliates that are a non market economies congress would say i thought that this rule doesn't apply the right there were at least at the very least commerce would say that it does not apply to the two non market economy affiliates it may it may nevertheless apply to the other market economy affiliates and that though is that what you're saying here that with time a it applies to the thailand but not to china and vietnam  in this case we're saying with respect to time a the only affiliates on the record were viet views the chinese so is the rule is congress is rule when all of the affiliates of a multinational corporation are a non market economies than the rule doesn't apply i'm just trying to find out what you're asking us to affirm that's that's the most that's the most limited version of the rule and that's those were the facts that were before the part of congress in this determination but the agency should have the discretion to enunciated in agency determination so another set of another mixed question of fact and laws such as that were come up i certainly can't speculate on what congress would do but it appears that it would be permissible for congress to look to the market economy  affiliates and not look and discard the mark non market economy affiliates or maybe congress to come up with another rule and the second why would we be able to do that let's assume somebody has one non market so you're saying the rule might be parsed so that if you have to non market economies and to market a clot as part of an m n c then the result might be different and if your company you're suggesting that there's an ambiguity in this language created by the difficulty in doing these calculations based on dealing with non market economies why would that make why would it make a difference if we're dealing with two out of four or one out of three because we have to turn back to the purpose of the statute and under and under the legislative history it's discriminatory pricing is what congress was concerned about so if that sort of discriminatory pricing occurred with respect to a market economy affiliate then it would be reasonable for the agency to apply the multinational corporation provision in that case even if there were non market economy country affiliates as well so we're supposed to  statute that we're we've got a question about discriminatory pricing not my problem at this is that i think the statute is relatively clear in terms of if you meet this criteria the but what we we believe in the department of commerce believes differently in that section six hundred seventy seven eighteen makes very clear the prices that are paid in non market economy countries and non market economy currencies do not reflect fair value and that's the whole point of the dumping was to determine whether silver made it less than fair value i mean that that term fair value appears both in section six hundred seventy seven eighteen in the negative and appears in the in the affirmative section sixty and seventy three and one other point i want to get to which mr rickard made talking about whether subsections see can be brought in well the first condition of subsections see is that it applies only if only quote if the subject merchandise is exported is export from a non market out of the country and in this case the subject merchandise was exported from thailand which is a market economy country so even under its own terms non market economy statute would not apply here because the merchandise itself was not exported from a non market economy country that does yet to make a finding in that regard was that an argument made to the court  apply in this case but is the other side suggested there's a difference was that finding based on the fact that this criteria of double i wasn't mat or because simply because in your view given the two non market economies here could never  apply that was the department of commerce his view was that it could not apply because it clearly could not apply on its terms if if the if you looked at the problem from the other direction if the respondent were say a chinese company and it had a market economy a market economy affiliate but and that was the basis for the part of congress determination that the trial court sustain that but also concluded that if you look at c one it's also just like just like the multinational provision is permeated with reference to pricing among other things in fact it's in title three criteria or subsection d so that was that was an alternative basis  involved but continue to go back to the point that normal value has to be determined by prices and this is confusing aspect of the statute because it moves throughout there are both ways to determine normal value with reference to prices and without because there wasn't enough home market sales there weren't sufficient home market sales to allow for comparison with export prices but time ice home market value would not be irked that their normal value for the format but it would never be determined in terms of prices