he will hear arguments first or in number fifteen twelve sixteen diamond saw blades manufacture against united states result congress included five words of computer code a cost our clients importers millions and millions of dollars when congress started the process of changing the law to eliminate zero ng in two thousand and six they for all investigations pending before the department that's in one part of the final modification notice and in the second part they said it would apply to quote all current and future antidoping investigations as of the effect summary says that the schedule for implementing the change is found in the timetable section and that's the sentence that does not have the phrase before the department  but that still leaves open what exactly this phrase is supposed to mean and then one starts looking for if you could call them clues about what it means and the first thing you get is this slightly different language in the in the comment section that language itself is not terribly clear but what's awfully precise are the two statements this is meant to apply except for future proceedings only to seven petitions and only titian's filed after mar sixth two thousand and six that very those are two very strong clues and so my question is when everything else is actually not that clear how is it that we don't differ well first your honor  that you're referring to in the middle of the first second and third that mention the seven pending cases that is explanation of why it was fair to make this retroactive which is a big deal it's the only section one twenty three chang language which if it exists then requires us doesn't tell me to i mean do you think it does require us if if one found uncertainty does it require us to congress is interpreted well this is something that is a big hole in the court's decision below because there is an eight case the commerce applied this final modification to that's not one of the seven and all parties agree that the case on polyvinyl alcohol from taiwan was off at the after the final modification by regulatory and i mean what is the regulation say is the end of the case if it's the publication of an order the idea that well that case was a little bit earlier in the process than saw blades as really a lot of explanation that you will not find and aren't administrators determination anywhere that is the bigger kind of post hoc reasoning that that you do not need to defer to under our and that supreme court's christopher case is litigat spend a great deal of time in our free pointing out how those are distinction without a difference for example unlike in polyvinyl alcohol we actually argued the section one twenty three change of zeroing in our briefs at the ministry of level commerce just didn't address that they said this is premature nobody argued anything a polygon alcohol and commerce applied to change because it came back to propel the kitchen of the antidumping order after the final modification was issued the regulation is very clear and what is the beginning and end of a case an investigation of just about i'm just not remembering very well when the when commerce decided to discussion of why they had discontinued zeroing in that case nothing so what would be wrong and i again i don't remember and i can ask the government is it the government's view now or what would be wrong with the view that a polyvinyl investigation was newly painting when it returned in whatever year returns but well after february two thousand so that that takes a great leap beyond what the what we consider has the force of a regulation the notice after final after public comments notice a comment that one twenty three change that is reading an awful lot into that that was not expressed in that notice and returned a new investigation well that brings up a point that i'd like to discuss which is aren't we also you could argue about whether we were pending before at the time of this two thousand and seven notice but you can't argue that we were current and future when the case came back for the antidumping order to be published in two thousand and nine for it to be amended in two thousand and nine and again in two thousand and fourteen three further bites at the apple commerce had and it wasn't until the order was published that the case was actually finished under the commerce his own regulations which clearly defined the beginning and end of a case the beginning three fifty one one zero two thirty commerces regulation says a case begins on the date of publication of initiation and then at the earliest of them we have two of these actually terminations due to a negative i'm going to paraphrase due to a negative i we had that one the case stopped and went off to the court but then they came back to commerce for its second life and it didn't end until publication of the order that three fifty one one zero two sturdy little roman numeral fo so i mean to me the question is really for governments counsel when you publish that they dump an order in two thousand and nine what segment of the proceeding where you publishing that order and it has to be in the investigation it wasn't  finish chapter one until after commerce changed the law pursuant to a lawsuit that the b t o that commerce went through the steps that were missing in the courts to all cases where you said we're not going to get into giving full recognition to international obligations because congress hasn't gone through the steps now they have in the end they tended clearly to make the when they finalize the creation of a couple more broadly than petition which is what they started with so we believe we should leave the ninth case out in the cold and let them apply to an eighth case which clearly diverges from from their explanations nos is the universe on the table if you were a physician prevails here nine or is it a lot more than one is just basically the only case that the only to raise your question i t c negatives that get turned around in court and come back for an order are exceedingly rare it just happens that there are two of them in this case the p v a case which which died a premature death and then came back and our case they were not different from c a in the sense that under commerce as on regulation the case that not vanish until the aunt that dumping order was published that that's all that i don't think that's quite responsive to the question question is how many cases like i had not been finalized i do not know but those would have been contact with then commerce has come out of the seven effect because again the regulation set up when a case begins and ends and if a case begins at the commerce department so would have talking in excess of five million dollars because there are five words and a computer code that commerce all they have to do is delete how do we know that but they actually did it a few years later when the second case came down and says now you that thank you very much particular i take the question to be how many proceedings had a final affirmative determination or a final determination by the department of commerce but no order until after the one twenty three proceeding and if not is the question that is yes the answer i believe that there are there were fifteen proceedings where that one twenty three section basically bifurcated that point between the final determination and the order of the diamond saw blades that the only clue as to what congress met what they talked about pending before the department that it was not the cases where there was no final determination by congress where there was something pending before the i or that there was a problem here or you totally unaware of it i mean you could have dealt with it by using this simple statement like final determination something simple and then we wouldn't go through all this was in no recognition of the fact that there had to be a transition i think at the time that the determination was made in the language that congress decided on which language to use it felt that it was being very clear now obviously i believe that commerce felt that it was being very clear when it when it wrote this language now as this court is aware of the government's obligation has a very unique procedural history and certainly unexpected things happened that raised the question about about what this language means in this context in a way that it was not raised for the other fifteen investigations but but we do know that there at least four different sources i think that confirm that pending before the department really does mean can you talk about the p v a situation and how that what what is the basis on which our operative theory your honor is that investigations in which there has not been a final determination are subject to this policy change has a pending because either investigation and you don't go back and start a new one and do another preliminary stage so it would be odd to say that it was a new investigation when it came up here i think don't you have to say that the p v a investigation clear about our how if whether the investigation was characterized suspending or not and i think really the courts the p v a investigation is not before this court i don't think about it colors it colors what is a reasonable interpretation of this language and the fifth if one truly cannot fairly say the t v a was either new when it came back or pending when it came came out then it seems to me  there's a giant question about what this pending means or maybe even it was an answer which is as long as the investigation hadn't reached finality then it was pending in front of that the whole investigation had not reached finality namely an order no longer appeal i'm sorry i i misunderstood negative determination there was no final permanent determination there was not even a preliminary determination in p v a until well after the policy change was published but why did you hesitate as i think you maybe even more than hesitate several times when i understand that the court i think believes that the p v a investigation colors the interpretation of the pending before congress language in a way that to a greater degree than than we thought and that we discussed in our briefs and so my hesitation was simply an attempt to explain that in our view our position is that really either characterization would work and i hesitate to speak about a nother determination in which commerce which is not before this court and which in which commerce commerce is language can be interpreted in different ways the the reality is i'm a little surprised that your climate that you know you hesitate to talk about the proceeding that's not before the court it seems to me that the p v a issue is sort of the biggest weakness in your position little surprised your honor i did not mean to say that i hesitate to get into it i think my comments perhaps an artful meant to reflect the fact that in our view p v a is not a big weakness because there's a very easy  a way to reconcile it with the policy change and with what commerce has none and that is that commerce is language and commerce is discussed in the policy change after it says we're going to apply this policy change the proceedings pending before the department and t discusses what it means by that one of the things it talks about is the proceedings in which it has not congress has not yet issued a final determination and p v a fit very comfortably with that characterization within that within  said scenes perfectly reasonable characterization of whether there was an open final determination but it seems to me that you have to be able to say unless you tell me it doesn't matter if there is inconsistency you have to be able to say and therefore the p p a investigation was pending in january of two thousand and seven before that department and your honor we would take the position that therefore that because there was no final end of the luminary the p v a investigation was pending before the department in january two thousand so that is the position that we take in our view the court need need not necessarily reach that question to reconcile the p v a investigation because in some sense when the p v a investigation started doesn't matter what matters is when the final determination was made in other words the most reasonable way to read converses language in the policy changes if there's a final determination that occurs after the policy change notice then the policy change applies but to the extent that the court feels that we do need to reconcile the the it's to take to take a firm position on the p v a investigation our position is that the p v a investigation what pending before congress in two thousand and seven because there is no final determination i see that i don't have a lot of time i would just like to mention that in addition to the p v a we have and the language of the policy change we have three other sources from which we know that the term pending before the department refers to investigations in which there is no final determination by the department because it is the final determination by the department of commerce operative we know that from congress statements in other administrative proceedings involving small boys and in particular in the case advanced technology and material commerce actually provided an explanation and an articulation of its interpretation of the policy change language with respect to the diamond saw blades investigation that was a case in which the trial court relied in reaching its own decision it is the citation for precedents of this court them investigation which broadly speaking stands for the proposition that administrative determinations should become effective and become effective at the time of the rescue not upon the factual issue of whether or without your honor click possible that it's not a binding decision obviously own department and i'm mindful of the fact that clearly it bears on the reasonableness of the department's actions but it is entirely possible that the department got p v a wrong and yet it interpretation of ongoing or pending in the diamond salt lake matter is still recent and should be upheld i think it's also possible you were talking i'm sorry your honor had referenced newly pending or in the terms of the final modification a future case i think there's a reasonable interpretation where p v a could be a future case in a way that it's distinct from diamond saw blades the fundamental i think it's probably most appropriate and i would echo the arguments made by the government probably best and you must procreate lee viewed as pending and that no final determination had been made yet and that's distinct from  when p v a came back before the department questionnaires were issued party submitted briefs and went to a preliminary determination it went to a final determination and consequently could be viewed either as a pending or future  i don't feel the need to be redundant i would perhaps offer two points of clarification refresh rear ended have you answer any question i would say one in regard to a minor point in regard to any arguments regard to push ha rationalizations it should not be surprising that the diamond salt lake decision did not discuss in more detail a final modification that had not yet  somewhat disingenuous to argue that arguments now made in regard to this are post hoc but i think most importantly at the end of the day as a factual matter it's there's no argument that department of commerce had made and published its final determination months before there was final modification and i would suggest respectfully the to the extent that there's really any ambiguity in regard to the ongoing  pending there's a long line of cases michael stores indicating that all deference the department deserves deference in this regard and that being said happy to answer any additional questions morning mr five for part of four he was many of the organs we've heard this morning from a peleus have focused on the two points number one that they believe that the operative term we should be discussing is pending before the department and as we've noted in our brief and i think it's very clear in the final modification notice that's incorrect the department has used interchangeably three separate terms they've used the term and then that is the term ongoing and then in the time line in the very last sentence they stated that it will ply to all current and future cases all these terms have been applied interchangeably without any definition to aid us in what we're attempting to discern right now so it is it is not appropriate to try and determine what the meaning of these are simply by focusing is the government likely to do on one term pending before the department now that the the the government other argument is that if we look purely and squarely pending for the department it's very clear they believe that pending for their partner means any case prior to the final determination and we believe that there's absolutely no basis to make that fin first and foremost as this court noted if that was in fact the department's intent it begs the obvious question why did the department not simply say that the effective date would be triggered by those cases by the final term nation that isn't a notice that is published in the federal register and would provide a date certain for all cases and thus there would be absolutely no ambiguity we also believe that in this instance because there is a question about what all of these various terms mean perhaps it's also more instructive to look at the opposite if you look at these three terms pending ongoing current and future what you can reasonably discern is that these first of these are not the these are these are absolute terms they are not terms of degree of cases either pending words not pending these either ongoing or does not one go so the opposite of this would be a final kicks a case that is final and as we've noted as my colleague mr grant's and discuss is very clear from the department's own regulation it defines the beginning and ending phases of the investigation segment of the proceed and it states that the investigation segment antidumping or in this case was published well after the effective date so the question remains obvious when that war was published in what segment of the proceeding was it published you know we often get cases in which the interpretation of a ruling that will policy regulation even a statute has significant impact  on how people acted that is their actions in reliance on the way this rule was written and they interpret it differently there's no reliance in this case is there in back which i thought of it all before this whole process started yes but then subsequent to that we were then required to participate in subsequent review proceedings where we felt that in accordance with the law as as should have been applied to time to this case we should not have been found to have been dumping the first place in which case none of this would have occurred and i think that's very significant is that the government is stating that if there is effect or after the policy took a fact or that's the i think the kind of reliance that judge plato was asking about that is he thought over the rule was this we therefore can import at these prices without worrying again i think you have to you have to look at the relative positions of of the parties and if you are a respond in an anti dumping proceed beating investigational review it's not really your question earlier or your position to determine what happened you are responding to the allegations of dumping that have been leveled against you and that's a very very costly allegation to defend against and obviously if there is a finding of dumping it becomes even more cost calculations would prove this to be truth would be that he was would be found to be diminished and therefore excluded from the antidumping water in perpetuity so this is clearly significant issue ok if thank you i think we need