in good standing in the highest courts of the jurisdictions in stephanie's case massachusetts the commonwealth of massachusetts and in tim's case the great state of california i have knowledge of their credentials and i'm satisfied they present us the necessary help to me and to the court and so i'm very confident that they do have the skills and the character required for membership in our bar and if the panel sees fit to grant my restrictions on what we say in court and what we can write is pinions it was apologize if there's a lack of of an indication from the brief but our expectation was that there wouldn't be a need to talk about that's confidential ok so back to the status of the regulatory construction issue the government would have you believe this case represents congress standard application of its non market economy into dumping policy but the problem isn't the pot to commerce the government's termination that's correct our view is that good we agree with your interpretational have to go back to rewrite the regulations that's right that's right what's your next argument what's our next argument you know let women been going there for me because circular because it if you agree with him that that is a nine year lows of your lives and they don't need them in the regulation when you try to get to them in the regulation that they don't need your honor i agree i agree of the problem is  rate rests on the fact that you're talking about the regulation exclusively are you not with the step to as if it only included be two and ignore it require it compels us to ignore subsection two and it's entirety i don't  theory and it just i think you're getting to the rub of the issue and they're going to say one ten point seven six one one one seventy two never and say the country why rate because that's the law from the original p simply says it opens the door doesn't say a whole lot it simply says that if you don't have or not a market economy countries you can use a rate that applies to all exporters and producers which by the way the concept that rarely in fact ever happens in these cases with you i've been fact i don't know of a case unless there are cases where every single chinese exporter and producers decided not to participate where the commerce department literally has applied a rating to all exporters and producers that regular honor what's been going on over history interpretation of the regulation my understanding is that the the government chooses to interpret that regulation to say that we're dealing with a non market economy then the  for that person and i say from the longest time the converse is in saying that person had their own right it was the countrywide rate every single and generic all people with no says if the second and that second clause where it says of the secretary has not established previously a combination rate dropped out or a combination rate for the export are in question and when you think about this from the perspective of the importer from the perspective of my calls when they were deciding what to do they had these producers the producers of benson the pencils that they that they wanted to bring in their days they read th they were talking about somebody who's been of as you can tell from his affidavit somebody who's been a customs broker license customs progress since the one nine hundred seventy s interprets this it looks at this regulatory provision which he thinks was gospel here cases is the problem because there's nothing here all there is is the and he doesn't call it sensing and b doesn't say the way it probably should in non market economy faces when we're in a market place together ex pres both individually and together a particular understanding of how this regulation operates which is when it comes to and exporters from a non market economy if they don't have their own separate rate they're going to be paying a countrywide rate that understood the data is that is what you get from if you understand of the of the that the variety of  decisions that have issued from the commerce department over the course of the last twenty years or so right so just so i understand your argument today is that this regulation is unambiguous that's right and you're not making a secondary argument that well if the court believes the way this regulation works to be ambiguous well we have a fallback argument which is their interpretation over the course of many years is just simply unreasonable week we have has given us some guidance in terms of saying what it is that we can listen to what the government is telling us in the course of the litigation expressing its interpretation biggers or not our view is that it's on ambiguous that that this non competition rate is a is a company specific concept to the extent it was it is ambiguous it's much easier but i will also tell you that i draw your attention to the preamble to the economy countries in those cases if sales in the united states are made through an enemy trading company we assign a non combination rate to the trading company regardless of whether the enemy producer supplying the trading company has knowledge of the destination of merchandise the point is that they're talking about they're not about this concept of a countrywide raid they're talking about the specific instance in which they a specific rate is assigned to a specific company which again didn't happen here so the point is that this if you read this preamble you can read the preamble it's the preamble far less clear in my opinion as compared with those to the middle names well that's correct and but you only assign an actual rate to the middleman once it is established independence from state control and that's also made clear elsewhere that says well the middle then we're just reading if you've got the language and he was going that's correct but that only occurs once the trading company has established independence from government control and in fact the preamble was issued about the same time you're saying is we a and somebody comes in and has for it that's correct you still have to establish independence from government control and in and if you look at the plain language of the regulation paragraph the two you know the first two words are new supplier and as it states another instance in which commerce assigns rates to exporters is in investigations and reviews of imports from the market economies in those cases the sales in the united states are made to an enemy trading company we see the synanon combination range  trading company regardless of whether the enemy producer supplying the trading company has knowledge of the destination of the merchant base but that's irrelevant because before you even get to that part of the preamble you have to establish independence from government control and in fact michael's was clearly on notice of that fact from twenty years of proceedings with respect pencils through commerce is actual policy from the sparklers case in  so are you telling me that it was the policy before then to appoint a country why great to someone who has not come in and ask for his own individual adversary when i got my call on the telephone yes and said by the way what you are and i don't think race well all exporters should know and in fact the initiation notices for both administrative reviews that issue in this case stated i'm quoting to establish whether a firm a sufficiently independent from government control of its export activities to be entitled a separate rate the department analyzes each entity export in the subject merchandise and it is that do not have a separate rate from a completed segment of the proceeding should timely file a separate rate application and that's at pages eighty eight and a one thirty four those were both published in the federal register and under the federal register act that's  go the country wrong route that is the agency's policy that had been published that have been published that have been published in the federal register and sparklers and in numerous other determinations and where the country w imposed on all non reviewed exports so it's clear that michaels was on notice as to what its export hours would get and not only that the regulation itself is very clear and as mr nicely noted section v two applies when the export doesn't have its own rate those those were his exact words during an argument that's what a new supplier would be well here michael's export as presumptively already had their own rate that was the china wide rate they were simply another appendage of the china wide entity because they had not established entitle me to a separate rate therefore they were not new suppliers whose rates could be two determined under b now if they had gone to the department of commerce and asked for a separate rating demonstrated independence from government control to choose the parties brief and argue for different rates during the course of a commerce proceedings proceeding and then congress makes its determination of the regular have under this regulation where you never individually custom that is that one can export or might sell merchandise from a dump a bunch of different producers that are subject to the order might sell to a bunch of different importers of commerce might also impose importers specific rates so the number of permutations struct away from any background noise and well no it has to be a rate a non combination rate could have actually been imposed it's in a general regulation that talks about creating a combination already in the combination just created when you have an individual rates custom made to people you're going to combine with your three that's quite a combination where it is right right so then you're talking about a non to suggest that we're all there maybe is something that i don't know and then you come in from the other side and say oh no the judge you're just wrong everyone everyone in the class everyone in the audience agrees with me there could be rage there are not combination rates that were that were imposed in the case where commerce actually reviewed and export but there could all be a particular company say but there could also be that great for where commerce review the chinawhite entity of which michael's exploiters were simply appendages and if to the extent there is ambiguity the only real reasonable way to interpret the regulation would be in accordance with the extent you have to if you to the extent you conclude that the regulation is ambiguous as opposed to unambiguous lee supporting the government's position really the only reasonable interpretation of the regulation would be to foster accuracy  there's absolutely nothing unfair here and the exploiters here in fact even michael's as an importer who which is an interested party had the opportunity to ask for review and get obtain separate rates for the exports but they elected not to places in our brief where we talked about training companies and with where we discussed the non combination issue and then part of the reason for that was the agency never really made an underlying determination but opinion that is trying to flex indian to be two in understanding how to resolve the case here whereas i thought i saw your read review focusing more exclusively just on  saying let's not even worry about consulting be two because b two is for new suppliers and let's just focus on d which is really about what do you do with anti dumping duties in relation to a non market economy no we we might have been a little more aggressive about about d but the trial court did conclude that section d really informs any analysis of the entire regulation you have to look at those those provisions together and section already under which commerce applies it's not market economy policy as approved by this court and segment transcon when you're talking about cases like sigman trans com you're talking about federal register notices here and there that are expressing some particular policy about what do you do with the non producing export or a non market economy into any of those policies didn't really connect the expression of a policy to the words of this regulation it does serve as truly an interpretation of the regulatory  of the i'm unaware of issues other than the preamble which we've already discussed where where congress would say well under section one zero seven of the regulations here's how we're going to apply it but instead congress made its policy very clear and going back to judge clevenger is a question about if you called up a producer in beijing who's never export to the united states before and and asked him or her what the rate would the next you would get an answer well the china white rate at least until the export went and got its own rate and that that's something that parties of in on notice of for more than two decades and that's also something that's completely fair broker to do read to read those regulations and say ok the folks who i'm buying from going to be subject to something different to my own notice that i need to request a review for for for these additional exporters and in fact when you read that regulation it says no the buy rely on the producers free and and if you think about it from the perspective of somebody is not steeped in these years of the antidumping rules to g market economies which may make perfect sense to all of us folks in this room it doesn't make perfect sense to everybody else who's out there outside the beltway the question is what does the regulation say in the regulation was very clear is very importer is supposed to look at to decide what a regulation means if i were to put this in the patent war context i would say to this reasonable person you have to go get the patent and then when you think you know what the ban means you have to get what's then you're basically charged with the knowledge of everything that's out there before you say oh i know what a regulation need is now in the context of that law we've been doing it from time immemorial and no one's ever complained that i don't know what the answer