yes your honor thank you very much our client dillinger france is a custom producer of steel plate in france they were involved in the antidumping do the investigation of what the like place from france and we're challenging three aspects of the department of commerce has determination our st challenges with the mess at the department used to calculate the antidumping duty had the department use  the average the transaction with zero ing to calculate dillinger's anti dumping duty and that resulted in a rate of six percent this is judged i'm a little confused by this argument because as i read the regulation three hundred and fifty one point four one four where you have custom materials the determination is based on a transaction the transaction average comparison and so i don't understand how that consistent with the idea that these are custom products wouldn't shouldn't you be arguing that the correct comparison is transaction a transaction your honor the transaction to transaction method is rarely used by the department and it requires a whole arguing for that correct your honor although the regulation as i understand it the default is always the average the average and then you have to convince the department to go to one of the other methods  and here the department is using the exceptional exceptional messed it up to average a transaction under the average the average where we are don't believe there is dumping and there was indeed no dumping and so the issue here is whether the department can default from their normal average to average and and use an exceptional method with the transaction the regulation the secretary will use the transaction transaction method only in unusual situations such as when the sales of the material product is quote custom made if you're right that this is a custom made product why isn't the transaction transaction met that correct well  right first of all that would have required us to argue before commerce this the separate method and to show that this is exceptional and then argue about what custom is what we mean by custom is it's made to order we dillinger does not make a lot of plate in one grade and warehouses for customers to purchase instead they only melt the steel and roll the plate according to a specific customer order for what the customer needs on a specific project whether they're building a bridge or building a skyscraper or building a offshore platform so that's what we mean by customized and the other problem is in these cases they come by surprise nobody knows it and anti dumping case is going to be filed within a few weeks after the investigation is an issue dated you've already received a questionnaire response and the questionnaire response is already geared for a questionnaire and that's already geared towards presenting your data in an average to average basis so it's very hard to try to jump out of that that methodology on a short timeframe but be that as it may we're arguing that they should have used the average joe average and that average the transaction exception is ball in this case the department did not themselves say that the transaction the transaction should have been used in fact when you look at the exception with the average the transaction the wording of that exception says they also have to show why the the comparisons could not be done under the average average or the transaction transaction and they said they didn't have to state the transaction transaction and that's not part of our case we didn't appeal that part of their decision so the issue here is should the exception have been triggered and in order to trigger the exception the statute is very clear it's known as the targeted dumping provision and it says that you have to show that there is a pattern of export prices for comparable merchandise that differ significantly among purchasers regions  periods of time and what the department did or what we argued below is they're not looking for any pattern that this provision specifically uses the word pattern of export prices that significantly differ and they only look at significant differences in their determination they basically confirmed that in their determination in black and white they said the pattern requirement necessitates only that there exists significant differences in prices so here they're saying that they're basically reading the word pattern of export prices out of the statute and that's precisely our problem it's very precise issue of statutory construction  department has a lot of discretion to interpret the statute but they cannot interpret statute in a way that renders specific words meaningless and that each word in the statute should be given its normal meaning and the plain meaning of pattern and this is in all the dictionary citations both in our brief and the government governments prefer they all come to the conclusion that pattern means a discernable sequence or arrangement so it's not enough to just show that there is a price difference is you have to show that it falls into some sort of discernable sequence or arrangement and we have read all the jurisprudence of this court of the c r t this issue has not been raised before and then the briefing that has not been disputed that this specific issue of statutory construction has not been been  before the court before and the government seems to say that it's a question of they don't have to show intent and we're not showing saying that they have to show intent to to ma dumping they just have to show that there's a pattern from the evidence so that's clear from the statute and that would be our position that just on basic terms of statutory construction the apartment did not properly apply the exception the next point on this exception is the legislative history and the statement of administrative action also says that commerce w proceed on a case by case basis looking at whether there's a pattern of significant price differences and it specifically says because small differences may be significant for one industry or one type of product but not for another and we argued that because each of our plates are made to order of course there's going to be price differences between different orders between different time periods that they have to take that type of product and that type of industry into consideration and they didn't they've always applied the same it's called the differential pricing methodology and they've always applied the same thresholds in every single case and this methodology was  developed in the case about nails and while the thresholds might make sense for a commodity product like nails they don't make sense in a case for custom made plate that can be made for pipelines and various other things department did not follow the legislative history and applying this exception the next point has to do with the cost of production that we reported for non prime plate and non prime plate is plate that doesn't meet the customer's specifications this case is directly decided previously by the court is directly on point here and what it's go said is where you have two products that are being made by the same process that have the same inputs and you don't know till the end of the production process which is going to be prime and which is going to be non prime the actual cost of production is an amount equal to the cost of material to fabrication to other processing and that's exactly what dellinger reported for the non prime plate but commerce require dillinger t to instead of reporting the cost of the plate they require them to report the sales value of the plate as a surrogate for the cost and that is directly against the court's decision and it's zero the last point has to do with the level of trade and last point on the level of trade is that the statute says that commerce has to compare the prices in the foreign market and the home market based on the same level of trade and this court at micron and in the department's regulation all agree that level of trade means a stage of marketing and that the stages of marketing are clear you start with the producers so sales directly from the producer the next stage of marketing is distributors or resellers and here dellinger showed that they had two levels of trade one was direct sales from their factory and the next one was sales that they made to a related service center that inventory the plate and then cut it into smaller pieces and then sold that and there is no evidence how that is not a distributor or reseller that this separate company has their own sales force has their own logistics has their own production and cutting and this is indeed meets all the marks of a separate level of trade and the department hair and treating it as the same level of trade as direct sales from the factory ok thank you one question wh developed here is a reasonable exercise of the discretion that has been granted to it under the statute this court has reviewed mr michael fine indicated almost every other element of the differing pricing methodology or d p m that congress has medicine under the regulation that i cited earlier perceives the regulation that could be correct your honor and i think that that gets to one of the points we made in our brief that these are not necessarily custom products within the scope of that regulation but more  steel that are made to certain specifications and i would actually direct the court to page thirty eight the appendix where the trial court did no specifically just issue i do wonder actually did initially argue in its opening brief before the trial court that the congress should have used cheated on but ended up advancing that argument so that's just simply not an issue before the court but i do think it highlights these are not necessarily items that are as custom i think that some of the briefing from from pent up apology might indicate and you know itself determines whether or not there is a significant amount of pattern differences of pricing differences over the subject of review and the very narrow definition of ideal and your is essentially that there needs to be some sort of the great scope of the data presented or to detect large changes depending on again the standard deviation and the statistical analysis of all of the data and in fact this court actually rejected an exactly opposite argument in the mid continen too difficult to meet in this court rejected that saying that in accordance with the language in the essay that that those small differences might be really important in a male case whereas we're talking about plates like here likely urge i see some sort of connection between hiding or you know what we're saying the only dump to customers in the south pole which are considered the south and so i using this mathematical s understood your honor not to imply that they can see the dumping but rather the pattern requirement that they urge while conceding that there is no requirement to find intent it does you know i think right it would allocation rather than cost allocation so how is congress is approach consistent with the statute which says that you should use books and records that quote reasonably reflect the costs associated with the production mean we have a specific provision here which says costs from the i'm sorry the books and records will be used if they reasonably reflect the costs of production but here the books and records do not the allocation does not reflect the cost of production but rather price right your honor so again with that if i may just briefly explain the lower cost or market principle which is  acquired principle it is a principle that says that if you have to track the cost of your inventory based on either the cost of actually producing it or its market value as a principle to ensure that companies do not over inflate the value of their empty torrie are potentially under inflated and i would note that the full language of the statute the court was just referring to read recently reflect the costs associated with production and sale of merchandise this is not say actual costs and actually just on the page directly reason there it was type it was the pineapple producers who said that the allocation in their actual books had no relation to the market it was just completely random with regards to campaign a person commerce took a look at the records and said well actually there's some pretty consistent separate distributor that shifts the burden here importers are not entitled to a level of trade distinction rather it is something that they can place information on the record establishing why why they are entitled to that  level of trade distinction and i would refer the court specifically to some of the arguments that were present which are essentially circular they are essentially saying because the distribution center therefore the distribution center in another level of trade sales operations one deals with large manufacturers many of whom have their own factories their own trucks their own distribution model the other person deals with local mom and pop shops and restaurants that are within a close radius of our factory here in italy because we deal and records if they are consistent with gaps and quote reasonably reflect the costs associated with the production and sale of the merchandise so it's recognizing that there are some circumstances in which the books and records are not reflecting the actual cost and that they're done on some other bases as in tips go here that other bases his  ok so one issue on the pattern issue or one point on the pattern issue the government still has not said what pattern means or how it how its methodology looks at any pattern other than it just looks had six significant price differences and the statute says what it says and each word needs to have meaning on the non crime issue i gree with judge dykes  that and also i would dispute that that passage that counsel read says that that's how the costs are i think it's a little bit misunderstanding what value and what cost me we says that they're valued at their selling price and that's taken over as the cost there cannot be any dispute and nobody has ever disputed that the actual cost of production for prime and non prime plates are the same they have the exact same materials they have the exact same labor and the exact same processing it's not until the very end of the assembly line that you can tell what's going to be prime and what's not going to be prime so the actual costs are the same for the two and dillinger properly reported that also the statute asks for the actual cost and that's exactly what we've given there's no place where the statute says that sales value for subject merchandise can be can replace the cost petard pineapple case was a totally different situation where you had coke products one dollar was subject and one was not subject you had the proof and you had t they had a joint raw material and the only question in that case was how do we allocate joint raw material to these two products one subject and one non subject there the statute is not clear but for two products of different grades that are both subject merchandise and are both made in exactly the same process process the the statute is clear you need to use the actual costs and if go is directly on point there i see the did provision b three was also inactive and b three specifically says that the cost of production shall be the sum of materials processing and all