confirms raw material constituted a very high percentage of the total cost of of the product under consideration and therefore it was economically sensible for board time to increase its prices for me do you think we should have done shipment should know i believe your honor that the commerce department should have used the average to average methodology in comparing their prices and not resorted to the target of something provision as an exception because i believe that they could not meet the average the average methodology in our case they also said that in the event that they find that there is targeted dumping they would resort to be eighteen at that ology and therefore commerce this decision to resort to the agency methodology consider the raw material price increases i think what i'm trying to say your honor is that once they start with the promise that they should use the averaged average methodology commers then that only in the event that we find that the president the requirements of sixteen seventy seven s one d one b i'd use the idea of the targeted dumping provision only if those requirements are met will we then use the eighty methodology in your view some verbal evidence and which congress did not dispute that in fact the price increase was fully explained by the changes in the cost as a consequence of that evidence went directly to the question of whether there was targeted dump the product that's why i wanted to come explain well yes in part i mean what we're saying is that with respect to the requirement that congress find a pattern of price differences the first test we believe and it goes on to say in the f d a i be targeted dumping may be occurring we believe that because we presented the evidence that in fact targeted something was not occurring in fact this w simply a matter of price and in order to take into account increasing raw material prices and to avoid dumping that that requirement was not met moreover commers test that is again a normal methodology e averaged 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 wan 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 kanda normal methodology take into account the targeted dumping or take into account the pattern of prices that we see commerce simply doesn't even look at whether they're started dumping in fact that they always through vision have nothing to do with targeted them and they say we're just going to look and see what the results rate so i think your answer my question actually was yes that the price differentials have to be unexplained by something other than targeted dumping yes correct i'm sorry and so then if that's the case you present one potential variable is do you believe that it congressman legation to consider all variables or is there kind of a bird's shifting going on here that that only if something for genentech comes in the latter your honor i mean in another words we don't believe that congress had to go out and look for the reasons or have an affirmative duty to do that however congress 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 congress would have the right we can see to proceed to find that there is targeted dumping but when party has presented affirmative evidence based on objective criteria then congress does have an obligation to examine whether that could still be considered targeted them like that the statute itself simply speaks in terms of look at the language of the statute and this is particularly true of the f a a because if congress voted on it and adopted it as a you know accepted the definitions there and definitive interpretation of what it meant by the law to i think that part of the issue here really goes down to the point that commerce and position is basically the target and dumping in targeting has nothing to do with this provision in fact before the lower court congress i mean the government was specifically asked whether they and believe that significant price difference is equal targeted dumping and they did the physically said no they said the targeting dumping had nothing to do with the exceptional provision and we find that to be a rather remarkable statement given the fact that the essay itself says that targeted dumping that this is an exception for targeted dumping and i can give you th why they find that the differences are significant is simply that it results in a different result i mean in other words the dumping margin is different under a methodology that compared the average to average person average and transaction what i submitted to that difference has nothing to do with price changes in other words you can when you do the dumping calculations on any dumping database and you use those two methodology and they're go results one because of what the court said and observed in the beijing timeline case which is that averaging 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 do or they don't take into account negative when they take into account negative margin when they use the average transaction methodology they they do not they do not consider negative margins as a consequence you almost always get a difference in result so we don't understand why that has to satisfy congress and the pacific requirement that that to the commerce department a savage and explains congressional budget office which concluded that transaction specific price comparisons are statistically biased toward finding a dumping margin and that when in fact the margin the actual margin is small and you apply it's true your honor says new section seventy seven eighty one b provides for a comparison of average normal value to situations where an average to average or transactions transaction methodology cannot account for a pattern of prices that average average transaction method alright but it doesn't say that well first of all it talked about it does refer to the fact the targeted dumping may be occurring so they don't have to make a form of determination that is exciting and when you say that account for it i don't 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 read read in context you're honored suggests that the i you were targeted something may be  g it's saying it's suggesting that if you observe the pattern of significant price differences it may be the situation the targeted something is occurring so what we're saying is that finding th pattern is simply a precondition to then look at whether targeted dumping may be occurring and that this subsequent task the sort of additional requirement congress congress has imposed due to the exceptional methodology restriction basically in 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 something there's nothing to unmask there's nothing to determine there your argument for a little bit circular though because in order to get to this that the legislative history that congress was part and time act and the court said that even under chevron one you do not look soley 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 th court that it is always read the essay in conjunction with the law in determining whether or not something is as is plain from the words of the statute the comp that the court doesn't just say oh it's nothing in the statute we drop our hands we don't look at any legislative history even under chevron one we also look at the legislative history and the f d a is a very special kind of legislative history because of congress a statement in the context of approving it t definitive statement of their interpretation of the law purchaser region or time three and the issue here is that orders on ts is built on an incorrect presumption that that concept of targeted dumping also entails and intentionality components that have to be and thirty one forty eight of the record which are your son's initial responses to convert the allegations of target dumping where boris on said by definition the concept of targeted and indicated an affirmative  something i understand that your honor although i would i would disagree slightly i think with correspondent done effectively used the word targeting synonymously for the idea of the purpose of intentionality so they say as long as you define targeting is purposeful behavior and remember it's not just called dark has started dumping in quotes and it says in such situations the export or may sell at a dump price to particular customers or regions well selling at a higher price to other customers in the region so again the whole concept is merely defined by a pattern of price differences where there is a significant difference to particular particular regions or time periods and that's plainly what's in the statute so in a business notion that there may be legitimate commercial reasons or other reason why there was a pattern of price differences to a particular customer region time free that also results in a meaningful difference between a and agency methodology isn't part of the statute and it isn't part of the f a a either essay where that section is that that your friend on the other side cited there is a reference to that congress having to explain why the average to average or transactions transaction comparison can account for the february two thousand and ten that were identified by commerce is targeted dumping analysis or mass dumping analysis turned out to be sales that were dumped that is the vast majority of the sales that were caused by commerce issues and things of that nature but on page thirty seven thirty six of the record you have the final results of congress analysis and it's saying look you're in the room and you're three point five percent and we've had some plans argue that well what if  that if we did really is something going on this is a page i'm sorry thirty seven twenty four of the record and thirty six sixty of the records where it isn't black and white the portion of the overall year sales that were in february two thousand and ten were significant portion of sales and thirty seven twenty four it indicates the number of those targeted the percentage of those targeted filled that turned out to be sold at less than fair value and the overwhelming majority passed the nails test and there was a pattern of price differences only because there was no meaningful difference between a team methodology comes determine that it was not appropriate to go on and applied it to methodology at the official methodology for the review and therefore a seat on map started dumping but the reason that the that the statute says that the f a a has made because until you're actually going to apply it and granted congress methodology cuts to the chase a little bit with cough differential of or somber material parts the vast majority of the sales in this targeted time period were don't they were sold at less than fair value in the united states and finally it's fair because this is consistent with the overall concept of dumping the domestic industry is no lessons title to a remedy for dumping because there are good commercial reasons for part of doing something in general it's not about intentionality it's about pricing discrimination that affects the domestic industry and that's no less true shyer 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 for some concentrated a significant portion of its sales in the s month of february and the overwhelming majority of those sales were made and done to price so now what borson wants you to do is to force the commerce department average those heavily concentrated d sales over the sales and all of the rest of the pierian of the investigation in order to watch out or mask the meaningful difference that you are exactly asking about judging and 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 isn't all that congress is required to do is to find is there a pattern of significant differences between the price of the export prices in the month of february versus the rest of the month that's exactly what they 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 dovetailed with something later on in the period that might be a higher price as exactly what did but the big argument is that that there's nothing going on other than math that in other words you're you're saying as long as there's some price differential at some period of time then we can immediately balance dumping rather than jumping to the end conclusion that it's necessarily go again you got up to what i think it requires is again before you can even go down this road you have to identify is there a pattern yes or no and that's a straightforward question it doesn't require intent or anything as they would suggest straightforward 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 more than is really not contesting that basic part of the test then you get to be does it make any difference whether you apply an averaging methodology or whether you fly a weighted  well there is no requirement in the stands to show why are there price differences there's no integrity i don't have a heart of a question you do not have the statute does not require any showing of an intention to target or an intention again what happened here with 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 ho market prices if then costs come along and increase you increase both of the price and 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 or since obligation not to done 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  a city average to transaction only if you determine that there is a pattern of pricing and that it can't be taken in account of in the normal course of business using average to average so if you can't take that into account you can explain that if examining under a day that's fine but just saying well you know i didn't buy the average the transaction and it resulted in over the minimum and therefore because i had a pattern automatically that puts me in i've given myself the excuse by the way to get the average the transaction which is where i started this is very circular and for a concentrated disease or not but this is where i think it is useful to to look at what judge restyling was discussing important understands not present but it's interesting because she's discussing the tension that the end they came out in favor of reducing the amplification of something that's the reason this is the exception and not the rule so yes there has to be a test but that would be salmon nation is i would all refer to the fact that well there can be other explanations for significant price differences and you see and what are those if you have it then 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 that is our position your honor that this is an exception to the rule and that's the reason that